^?> »'^ <<y ^^ "'""' ^0 <s^ "^ s 












o V 



V 












'- ,.^ 









.0 






^ a"^ ♦ r<>^ .-V »\r\ ^^ <^ » - 

* O H O ^ ^^ * » , T • A~ O * o « O ' .0 ^ 









c°: = - <?. 



■^^ < > . s • • , 



.<'' 



^. 






'>- 



°^ 






1^. 









'<• 



" ,0 






'^ \'y^^-^,' 



> 



,-i> 






^^ 






TAIU^K (»K sri'.JKCTS. 

I'aKC 

Slalfmiiil of the case 1 

History of llu- case 3 

The purpose for wlneh suit was instituted 46 

The purpose for which tht> tlecree of February II, IHitti, was entered. . 50 

The Secretary of the Interior invested with <'xclusive jurisdiction 

to make Kern-Clifton roll 58 

Cougrest* refused to conlirni the Kern-Clifton roll 70 

Action of the Secretary of the Interior in making up and approving 

the final roll of the Cherokee Nation is res judicata 75 

The petitioners' prayer for relief 79 

TAl'.LE OF l.MroinWXT PAPERS. 

Rejected amendment confirming Kern-Clifton roll 32, 33 

Rejected amendment to section 3 of the act of April 2(1, 1906 43, 44 

Report of Interior Department showing Kern-Clifton roll was not 

made in accordance with decree of February 3, 18!)G 44 

The decree of February 3, 1896 84 

Proposed instructions by coimsel and order of court thereon of Feb- 

ruar>- 15, 1896 95 

Letter of the Chief Justice to the Commissioner of Indian Affairs con- 
struing the treaty of July 19, 1866. in connection with the fifth- 

paragraph of the above instructions 98 

Instructions of the Secretarj^ of the Interior to the Kern-Clifton com- 
mission 100 

Proposed instructions of attorney forfreedraen to Kern-Clifton com- 
mission and order of court of April 15. 1896 109 

TABLE OF CASES CITED. 

Adams r. The United States 36 C. Cls., 104. 

Abbotsford, The 98 U. S., 440. 

Adams Express Co. v. Ohio State Auditor 165 U. S., 194. 

Brown v. The United States 113 U. S., 568. 

Buflington i. The Dawes Commission Ann. Rep. Int. 

Dept., 1904, Pt. 2, 
pp. 138, 161. 

Claflin i. Commonwealth Ins. Co 110 U. S., 81. 

Cherokee Nation v. The Delaware Indians 155 U. S., 196. 

Cherokee Nation v. Shawnee Indians 155 U. S., 218. 

Cherokee Intermarriage Cases 203 U. S., 92. 

Day V. The United States 21 C. Cls., 262. 

14296—09 1 I 



TI 

Delaware Indians v. Cherokee Nation 28 C. Cls., 281. 

Delaware Indians v. Cherokee Nation 30 C. Cls., 172. 

Dela wares, Shawnees and Freedmen v. The Cherokee 

Nation 31 C. Cls., 140. 

Fleming et al. v. McCurtain et al 215 U. S., — . 

Garfield 1). Goldsby 211 U. S., 249. 

Harvey i). Tyler 2 Wall., 328. 

Joins, Ex Parte 191 U. S., 93. 

Keim v. The United States 177 U. S., 290. 

Kimberlin v. The Dawes Commission 104 Fed. Rep., 653. 

Lumber Company v. Butchel 101 U. S., 638. 

Laurel Oil & Gas Co. v. Morrison 212 U. S., 291. 

Osborn v. The United States 9 C. Cls., 153. 

Plummer v. The United States 24 C. Cls., 517. 

Pam-to-pee v. The United States 187 U. S., 371. 

Romadka v. Sessions 145 U. S., 41. 

Steele v. Smelting Company 106 U. S., 447. 

Stephens v. The Cherokee Nation 174 U. S., 445. 

Sass & Crawford v. Thomas 214 U. S., 489. 

United States ^;. Cal. & Oregon Land Co 148 U. S., 31. 

Whitmire v. The Cherokee Nation 30 C. Cls., 138. 

Whitmire v. The Cherokee Nation 30 C. Cls., 180. 

Wallace i). Adams 143 Fed. Rep., 716. 

Wallace v. Adams 204 U. S., 415. 

West v. Hitchcock 205 U. S., 80. 

INDEX TO ACTS AND TREATIES. 

Treaty of July 19,1866 14 Stat., 799. T. 

Act of June 16, 1880 21 Stat., 248. ' J 

Act of May 19, 1883 22 Stat., 624. '"/ 

Act of October 19, 1888 25 Stat., 609. / 

Act of March 2, 1889 25 Stat., 980, 1005. 

Act of October 1, 1890 26 Stat., 636. 

Agreement of December 19, 1891 S. Ex. Doc. 56, p. 

16, 52d Cong., Ist 
sess. 

Act of March 2, 1893 27 Stat., 640. 

Act of March 3, 1893 27 Stat., 645. 

Act of June 10, 1896 28 Stat., 321. 

Act of June 7, 1897 30 Stat., 83. 

Act of June 28, 1898 30 Stat., 495. 

Act of May 31, 1900 31 Stat., 221. 

Act of July 1, 1902 32 Stat., 716. 

Act of April 26, 1906 34 Stat., 137. 



^n thcd! mill ut (!! laiiiifi of ihr aliutc d.^tatf s. 



Moses Whitmire, trustee for the 

Froodnion of tli^ Cherokee Nation, 

•V. 

The Cherokee Nation and the 

United States. 



k\o. 17209. 



BRIEF FOR THE UNITED STATES ON THE DEFENDANTS' 
MOTION FOR A REHEARING AND NEW TRIAL. 



STATEMENT OF THE CASE. 

On September 26, 1891. suit was brought by Moses 
Whitmire, trustee for the Cherokee freedmen, under 
special act of Congress giving this court jurisdiction 
to consider certain rights of the freedmen under article 
9 of the treat}' between the United States and the 
Cherokee Nation, of July 19, 1866. 

On March 4, 1895, judgment was entered by the 
court in favor of the freedmen, but the entry of a 
final decree was suspended until the court could be 
furnished with definite information as to the number 
of freedmen entitled to participate in the distribu- 
tion of the judgment. 

On March 18, 1895, judgment was entered by the 
court for $903,365, and on May 8, 1895, a decree 



2 

was entered providing for the distribution of the 
judgment. From this judgment of the court both 
the claimant and defendants filed applications for 
appeal to the Supreme Court, and a motion for a new 
trial was also filed by the defendants. 

On January 30, 1896, the claimant and defendants 
filed motions to withdraw their applications for ap- 
peal, and on February 3, 1896, the decree of May 8, 
1895, was vacated and a new and final decree was 
entered by the court by the consent of all of the par- 
ties to the suit. 

On September 30, 1907, the attorney for the Chero- 
kee freedmen, Robert H. Kern, filed a motion for the 
substitution of a trustee, Jacob B. Wilson, in the 
place of Moses Whitmire, deceased, and for leave to 
file a supplemental petition to reopen the decree of 
February 3, 1896, which provided for the distribution 
of the judgment of the court. 

On January 20, 1908, the motion was argued, and 
on April 20, 1908, allowed by the court. 

On May 6, 1908, the supplemental petition of the 
new trustee was filed, and on March 1 and 2, 1909, 
the case was argued on this petition. On March 29, 
1909, leave was granted to the claimant to proceed 
under the supplemental petition — the form and extent 
to be thereafter considered. 

On May 17, 1909, the defendants filed a motion for 
a rehearing and new trial upon the ground that the 
court erred in not holding that the decree of Febru- 
ary 3, 1896, had performed its office, and in holding 
that the ''Kern-Clifton roll" had been confirmed by 



Cono;ress, and that the duties of the Dawos Commis- 
sion in makinp: up the ClnM-okor rolls under the acts 
of June 2S, 1898, and July 1, l'.H)2, were merely min- 
isterial, and it is upon this motion that the case now 
comes up for a hearing;. 

HISTORY OF THE CASE. 

\W the treaty of July 19, 18()() (14 Stat., 799), 
})etween the Cherokee Nation and the United States, 
ratified July 27, 1866, the Cherokee confiscation laws 
were repealed and the former owners of the confis- 
cated lands were restored to their homes. (Art. 3.) 
The Cherokee Nation on its part agreed "that all 
freedmen who have been liberated by voluntary act 
of their former owners or by law, as well as all free 
colored persons who were in the country at the com- 
mencement of the rel)ellion and are now residents 
therein or who ma}' retiu'n within six months, and 
their descendants, shall have all the rights of native 
Cherokees." (Art. 9.) 

Section 5 of the amendments to article 3 of the 
Cherokee constitution, adopted in 1866, provides 
that- 
All native born Cherokees, all Indians and 
whites legally menil)ers of the nation by 
adoption, and all freedmen who have been 
liberated by voluntary' act of their former 
ow^ners or by law, as well as free colored per- 
sons who were in the country at the com- 
mencement of the rebellion and are now resi- 
dents therein, or who may return within six 
months from the 19th dav of Julv, 1866, and 



their descendants who reside within the Hmits 
of the Cherokee Nation, shall be taken and 
admitted to be citizens of the Cherokee Na- 
tion. (40 C. Cls., 141.) 

Section 2 of article 1 of the constitution of the 
Cherokee Nation provides that — 

Whenever any citizen shall remove with his 
effects out of the limit of this nation and be- 
come a citizen of any other government, all 
his rights and privileges as a citizen of this na- 
tion shall cease: Provided, nevertheless, That 
the national council shall have power to read- 
mit by law to all the rights of citizenship any 
such person or persons who may at any time 
desire to return to the nation on memorializ- 
ing the national council for such readmission. 

Under article 17 of the treaty of July 19, 1866, 
the Cherokee Nation sold certain lands west of the 
ninety-sixth degree of west longitude, known as 
"neutral lands," and also sold certain other lands 
west of the ninety-sixth degree of west longitude 
under the provisions of article 16 of said treaty to 
the Delawares, Osages, and other friendly Indians. 

By the acts of June 16, 1880 (21 Stat., 248), and 
May 19, 1883 (22 Stat., 624), Congress appropri- 
ated $300,000 each, to be paid into the treasury of 
the Cherokee Nation as compensation for the said 
lands belonging to said nation west of the Arkansas 
River (west of the ninety-sixth degree of west longi- 
tude), to "be expended as the acts of the Cherokee 
legislature direct." 



5 

III 1SS0 a i-oll was made of the Cherokee Nation 
for \\\v j)urj)ose of sho\vin»i- (he luinihor of Cherokees 
by l)loo(.l and the nunil)er of Delawares, Shawnees, 
and freednien entitled to citizenship in the Cherokee 
Nation under the treaty of July 11), 18()G. The 
names of 1,874 freedmen appear upon this roll. (In- 
structions of the Commissioner of Indian Affairs to 
the Commissioners who mad(^ the K(Mn-(Tifton roll, 
Appendix D.) 

In accordance with this roll the .$G()( ),()()() paid for 
the lands west of the ninety-sixth degree of west lon- 
gitude were distributed among the Cherokees l)y 
blood to the exclusion of Delawares, Shawnees, and 
freedmen. 

By the act of October 19, 1888 (25 Stat., 609), 
Congress appropriated $75,000 to be distributed per 
capita among the freedmen and their descendants 
mentioned in the ninth article of the treaty of July 
19, 1866, and among the Delawares and Shawnees, 
in such amount or amounts as would equal the per 
capita payment made to the Chei'okees by blood, in 
accordance with the act of the Cherokee legislature, 
out of the sum of $300,000 appropriated by the act 
of March 3, 1883 (22 Stat., 624), and made the said 
$75,000 a lien upon the lands of the Cherokee Nation 
west of the Arkansas River, which is the same as the 
west of the ninety-sixth degree of west longitude. 

Under the act of October 19, 1888, and the supple- 
mental act of March 2, 1889 (25 Stat., 980), a com- 
missioner was appointed by the Secretary of the In- 
terior, and a roll was made . up of those living on 



6 

March 3, 1883, known as the "Wallace roll," which 
was afterwards in 1890 revised and corrected by two 
agents of the Interior Department, and was then 
known as the "corrected Wallace roll," numbering 
3,524 freedmen, and upon that roll the freedmen 
were paid their proportion of the $75,000. 

Congress, by section 14 of the act of March 2, 1889 
(25 Stat., 1005), authorized the President "to 
appoint three commissioners, not more than two 
of whom shall be members of the same political 
party, to negotiate with the Cherokee Indians and 
with all other Indians owning or claiming lands 
lying west of the ninety-sixth degree of west longi- 
tude in the Indian Territory for the cession to the 
United States of all their title, claim, or interest of 
every kind or character in and to said lands." 

On the 19th day of December, 1891, the commis- 
sioners appointed under the above act entered into an 
agreement at Tahlequah with the Cherokee Nation, 
by article 1 of which it provided that "The Cherokee 
Nation, by act duly passed, shall cede and relinquish 
all its title, claim, and interest of every kind and 
character in and to that part of the Indian Territory 
bounded on the west by the one-hundredth degree 
of west longitude, on the north by the State of Kansas, 
on the east by the ninety-sixth degree of west longi- 
tude, and on the south by the Creek Nation, the 
Territory of Oklahoma, and the Cheyenne and 
Arapahoe Reservation created or defined by execu- 
tive order dated August 10, 1869, the tract of land 
embraced within the above boundaries containing 



1 

ei^ht million one liimdrcd mid foily-foiir Ihousjiiid 
six huiulred and oi<i;hty-t\v() and ninety-one one- 
hiindrodths (8,144,()82.91) acres, more oi- less." 

By the second article, para<i;raph (i of the agree- 
ment, the United States agreed to pay as an addi- 
tional consideration for the cession and relincjuish- 
ment of the al)ove lands the sum of $8,595,736.12 in 
excess of the sum of $728,389.46, the aggregate 
amounts which had aheady been ai)i)ropriated by 
Congress and charged against the lands of the 
Cherokees west of the Arkansas River, and also in 
excess of the amount paid ))y the Osage Indians for 
then* reservation. 

The same paragraph also provided that ^'should 
the Cherokee Nation determine to distribute said 
money, or any part thereof, principal or interest, to 
any of its citizens, per capita, and should the classes 
of persons provided for in the ninth and fifteenth 
articles of the treaty of July 19, 1866, claim that in 
such distribution they have been unjustly or illegally 
discriminated against, then on complaint made by 
such persons Congress shall by law authorize a suit in 
a proper court by and between such classes of persons 
and the United States and the Cherokee Nation, to 
determine that question, giving to any party thereto 
the right of appeal to the Supreme Court of the 
United States," etc. (S. Ex. Doc. 56, pp. 16, 17, 19; 
52d Cong., 1st sess.) 

Prior to the agreement of December 19, 1891, Con- 
gress, by the act of Octo):»er 1, 1890 (26 Stat., 636), 
gave to the Court of Claims jurisdiction to determine 



8 

the right of the Delaware and Shawnee Indians and 
the freedmen to participate in the compensation to 
be paid to the Cherokee Nation for its lands west of 
the ninety-sixth degree of west longitude in the fol- 
lowing language: 

Be it enacted by the Senate and House of 
Representatives of the United States of America 
in Congress assembled, That full jurisdiction is 
hereby conferred upon the Court of Claims, 
subject to an appeal to the Supreme Court of 
the United States as in other cases, to hear 
and determine what are the just rights in law 
or in equity of the Shawnee and Delaware 
Indians who are settled and incorporated into 
the Cherokee Nation, Indian Territory, east of 
ninety-six degrees west longitude, under the 
provisions of article fifteen of the treaty of 
July nineteenth, eighteen hundred and sixty- 
six, made by and between the United States 
and the Cherokee Nation, and articles of 
agreement made by and between the Cherokee 
Nation and the vShawnee Indians June seventh, 
eighteen hundred and sixty-nine, approved by 
the President June ninth, eighteen hundred 
and sixty-nine, and articles of agreement 
made with the Delaware Indians April eighth, 
eighteen hundred and sixty-seven; and also 
of the Cherokee freedmen who are settled and 
located in the Cherokee Nation under the 
provisions and stipulations of article nine of 
the aforesaid treaty of eighteen hundred and 
sixty-six in respect to the subject-matter 
herein provided for. 

Sec. 2. That the said Shawnees, Delawares, 
and freedmen shall have a right, either sepa- 



9 

rately or jointly, to Ix^nin nnd [)roseciite a 
suit or suits nuainsl llic ("hcrokoo XMlioii 
and the rnit(>(l States (Jovornnicnt to recover 
iVoni \ho dierokoe Nation all moneys due 
either in law or e(|uit\' and unpaid to the said 
Shawnees. Delawares, or t'reednuMi, which the 
C'herokee Nation have before })aid out, or may 
hereafter pay, per capita, in the Cherokee 
Nation, and which was, oi- may he, refused to 
or neglected to be paid to the said Shawnees, 
Delawares, or freedmen by the Cherokee 
Nation, out of any money or funds which liave 
been, or may be, paid into the treasury of, or 
in any way have come, or may come, into the 
possession of the Cherokee Nation, Indian 
Territory, derived from the sale, leasing:;, or 
rent for grazing purposes on Cherokee lands 
west of the ninety-sixth degree of west longi- 
tude, and which have been, or may be, appro- 
priated and directed to be paid out, per capita, 
by the acts passed by the Cherokee council, 
and for all moneys, lands, and rights which 
shall appear to be due to the said Shawnees, 
Delawares, or freedmen under the provisions 
of the aforesaid articles of the treaty and 
articles of agreement. 

Under the above act the Delaware Indians, through 
their principal chief, Charles Journeycake, brought 
suit against the Cherokee Nation and the United 
States for their share, under the treaty of April 8, 
1867, of the proceeds of lands west of the ninety- 
sixth degree of longitude, leased and sold by the 
United States. This court held on April 24, 1893, 
that they were entitled to their proportionate share 



10 

of $600,000; the proceeds of the sale of Cherokee 
lands west of the ninety-sixth degree of longitude, 
which had been distributed per capita among citi- 
zens of the Cherokee Nation by blood, under acts 
of the Cherokee National Council, excluding adopted 
citizens and their descendants, and that said acts 
were void and unconstitutional. (28 C. Cls., 281 
to 321.) The decision of the Court of Claims was 
affirmed on appeal to the Supreme Court. (155 U. S., 
196.) 

The Shawnee Indians, through their principal chief, 
Johnson Blackfeather, also brought suit against the 
Cherokee Nation and the United States, under the 
same jurisdictional act, to recover their proportionate 
part of the funds which had been distributed jper 
capita among the Cherokee citizens by blood to the 
exclusion of those who were Cherokees by adoption. 
This court decided on the authority of the Delaware 
case that they also were entitled to their proportion- 
ate share of the $600,000 distributed per capita as 
above stated. No opinion was rendered in the case, 
but the judgment of the court was affirmed by the 
Supreme Court at the same time the opinion in the 
Delaware case was handed down. (155 U. S., 218.) 

By section 10 of the act of March 2, 1893 (27 Stat., 
640, 641, 642), the agreement between the United 
States and the Cherokee Indians, dated December 19, 
1891, referred to above, by which they agreed to cede 
to the Government the remainder of their lands west 
of the 96° of west longitude, known as the Cherokee 
Outlet, in consideration of moneys already paid and 



11 

the additional sum of $S,r)*)r),7;i(), was ratified. Of 
which additional consideration tlie sum of $29.5,7.'i() 
was made ininiediately availai)le, and u|>on the pay- 
ment of the same th(> lands in (|uestion were imino- 
diatoly to l)ecome a part of the j)ul)li(' domain. The 
balance of the additional consideration, H;8,3()( ),()()(), 
was made payable in five ecjual installments, com- 
mencing on March 4, 1895, and ending March 4, 1899, 
deferred |xiyments to bear interest at 4 i)er cent. 
The section of the act then makes the following 
provision : 

That of the money hereby appropriated a 
sufficient amount to pay the Delawares and 
Shawnees their pro rata share in the proceeds 
of said Outlet shall remain in the Treasury of 
the United States until the status of said Dela- 
ware and Shawnee Indians shall be determined 
by the courts of the United States before which 
their suits are now pending; and a sufficient 
amount shall also be retained in the Treasury 
to pay the freedmen who are citizens of the 
Cherokee Nation or their legal heirs and repre- 
sentatives such sums as may be determined 
by the courts of the Ignited States to be due 
them. 

The Delaware Indians, through their principal 
chief, Charles Journeycake, afterwards filed a motion 
to reopen the decree in the Delaware case in order to 
cause it to extend, first, to the proceeds derived 
from the sale of the Cherokee Outlet; second, to 
increase the proportion of the per capita payments 
which would come to the Delawares in the distri- 



12 

bution of the funds derived from the sale of the 
Cherokee Outlet. The court consented to the first 
proposition, but refused to increase the rate of the 
per capita payments, and in overruling that part of 
the motion, said : 

A decree in equity, so long as the case 
remains open and within the jurisdiction of 
the court, may be extended to a subsequently 
accruing cause of action the right to which 
has been determined by the original decision; 
but this extension of the decree must be 
strictly according to the decision. No new 
issue either of law or fact can be determined 
upon a motion of this kind. 

Where the complainants rest content with 
a decree in their favor, and it having been 
appealed comes back affirmed, the court can 
not make a new decision affecting the legal 
rights of the parties and increasing the amount 
of the recovery. 

Where the original decree fixed the propor- 
tionate share of the complainants in a certain 
fund, they can not introduce evidence to show 
that they were entitled to a larger proportion. 
Such a change is not the correction of an arith- 
metical mistake or clerical error, but a change 
of the basis upon which the recovery rests. 
(30 C. Cls., 172 to 179.) 

Section 25 of the act of June 28, 1898 (30 Stat., 
490), gave the court jurisdiction to hear and adjudi- 
cate a suit brought by the Delawares "for the pur- 
pose of determining the rights of said Delaware In- 
dians in and to the lands and funds of said nation 



13 

uiulei' their coiili-act and a^irccincnt with the ('hcro- 
kee Nation, dated April eighth, eij2;hteeii hiiiKhcd and 
sixty-se\'(Mi." 

Undei* tliisact the Dehiwares l)r()ii«!;ht a suit, which 
was d(M'i(led hy this court on l"'el)i"uary 2, 190.'^ (38 ('. 
Cls., 234), and l)v the Sii])renie Court on appeal on 
February 23, 19t)4 (193 U. S., 127), and it was held 
by both courts that the rej^istered Delawares were 
" entitled to participate e(|ually with Cherokee citizens 
of Cherokee blood in the allotments of lands" and 
that the jurisdiction of act and suit were necessary to 
accomplish that purpose. 

The Cherokee freedmen, through their trustee, 
Moses Whitmire, brought suit in this court against 
the Cherokee Nation (30 C. Cls., 138) for their pro- 
portionate share of the proceeds derived from the 
sale of Cherokee lands west of the ninety-sixth 
degree of west longitude, known as the ''Cherokee 
Outlet," and the court on March 4, 1895, held that 
under the treaty of July 19, 1866, and the Cherokee 
constitution of the same year, they were equally 
interested as a class with other citizens of the Cher- 
okee Nation in the common property and its pro- 
ceeds when distri])uted per capita. The court, how- 
ever, refused to enter a decree " that the freedmen 
are entitled to participate with all the other mem- 
bers of the nation in all of the remainmg common 
property upon equal terms with the other members 
of the nation," upon the ground that there might 
be trust estates among the common property of the 
nation for the l)enefit of designated individuals or 



14 

communities over which "the Cherokee government 
has no legitimate control," and in which "the freed- 
men have no interest." The court said that when 
it was informed of the number of freedmen entitled 
to participate in the various funds which had been 
distributed by act of the Cherokee national council 
to "Cherokees by blood," it would fix the amount 
of the judgment and enter a final decree for its dis- 
tribution among those entitled. The court then 
stated that it would entertain suggestions of counsel 
as to how the requisite information should be ob- 
tained, and that in the meantime until further order 
of the court the entry of judgment would be sus- 
pended. 

In the preparation of the decree to be entered 
in pursuance of the opinion of the court of March 4, 
1895, the counsel of the parties litigant were unable 
to reach any agreement; the claimant insisted on 
recovering at the same rate per capita which the 
Cherokee Nation had adopted when distributing the 
funds among the "Cherokees by blood;" the de- 
fendants insisted that the court should adopt the 
number of freedmen, 2,052, which entered into the 
calculations of proportionate numbers in the Dela- 
ware and Shawnee cases. The court, however, on 
March 18, 1895 (30 C. Cls., 180), adopted the "cor- 
rected Wallace roll" of 3,524 freedmen as the basis 
for computation, after its further correction and 
approval by the Secretary of the Interior, of the 
amount due the freedmen of the moneys distributed 
to the Cherokees by blood, and fixed the amount 



15 

for (lislril)uti()n at $U()3,3()5, or $25().;i4 per nipitd, 
less the fees ol" couiisol, expenses of inakiiiu: the roll 
and distribution of the fund, etc. 
\\\v court said, at j)a^e ISS: 

This is not an action lo iccovei- (himages in 
the natui-e of a suit at hiw, nor is it a proceed- 
in^' in e(]uity to wind up and dispose of the 
alTairs and assets of a partnership. It is sim- 
ply a suit in equity, brought by the equitable 
owners of a specific funti to i-ecover their j)ro- 
portionate share in the same. The jurisdic- 
tional act recognizes this principle, for it au- 
thorizes suits to be brought for the propor- 
tionate shares of the parties in funds derived 
from the sales or leasing of lands of the Chero- 
kee Nation. The coiu-t can not go beyond this 
if it would, and no court of eqiuty will award 
to a party more than he is legally and equi- 
tably entitled to, because a party having a 
right to share in the fund is not within the 
jurisdiction of the court. 

The court then ordered a decree to be entered fol- 
lowing the form of the decree last entered in the 
Delaware case, and that the Wallace roll should " be 
further corrected by adding thereto descendants born 
since March 3, 1883, and prior to May 3, 1894, and 
striking therefrom the names of those who have 
died or have ceased to l^e citizens of the Cherokee 
Nation, so that when thus amended and changed it 
shall represent the freedmen entitled to participate in 
the distribution of the fund now awarded to the 
complainant." 

14291—09 2 



16 

The court authorized the Secretary of the Interior 
" to appoint a commissioner to proceed to the Cher- 
okee country and ascertain and report to the Secre- 
tary the facts necessary for the correction of the roll 
above described." The court then directed that the 
expenses of the commissioner should be paid out of 
the fund awarded by the decree, and that ''when a 
new and corrected roll is thus made and approved 
by the Secretary of the Interior he will cause the 
amount remaining of the fund awarded the com- 
plainants under this decree (after deducting the 
costs hereinafter directed to be paid by the com- 
plainants) to be paid and distributed to the freed- 
men entitled thereto, the cost of such distribution 
likewise being a charge upon this fund, pursuant to 
the act 2d March, 1895, section 11." 

On May 8, 1895, a decree was entered in accord- 
ance with the opinion of the court in which the acts 
of April 26, 1886, November 25, 1890, and May 3, 
1894, of the Cherokee National Council, providing 
for the payment of funds derived from the sale of 
public domain to Cherokees by blood, to the exclu- 
sion of Delawares, Shawnees, and freedmen, were 
declared invalid; the "corrected Wallace roll" was 
adopted as the basis for a roll to be made and ap- 
proved by the Secretary of the Interior, and the 
Secretary of the Interior was directed to distribute 
the judgment of $903,365, or $256.34 per capita, after 
deducting attorney's fees, expenses, etc., among the 
freedmen whose names should be found upon the 
roll made and approved by him, and that any balance 



17 

left after such payments should \)v paid over (o (he 
Cherokee Nation l)v the Secret aiy of (he luterioi-. 

After the entry of the decree of Ahiy S, IS'J.j, the 
attorneys for the Delawares, Sliawnees, and freed- 
nicn filed motions in their respective cases asking the 
court to reopen the decree and increase their per 
capita to $295.35, the amount (hstrihuted per capita 
by the Cherokee government to Cherokees by l)lood; 
and in the case of the freedmen the motion also 
. asked the court to appoint commissioners to reascer- 
tain the number of freedmen. All of the motions 
were considered at the same time (31 C. Cls., 140- 
147). In the case of the freedmen the Cherokee 
national council had passed an act in which it had 
accorded to them the amount per capita, $295.35, 
asked for in the motion. The court, however, on 
Januar}^ 27, 1896, overruled the motion as follows: 

In the case of Whitmire, trustee, v. The 
Cherokee Nation, the application of the claim- 
ant to reopen the decree and for the appoint- 
ment of commissioners to reascertain the num- 
ber of the freedmen and for judgment for 
$1,300,000 is overruled. 

The court in its opinion said that it could not 
allow a larger award to the freedmen than contem- 
plated by the jurisdictional act of October 1, 1890 
(26 Stat., 636), simply because the Cherokee Nation 
had consented to the increase. In other words, that 
''consent does not confer jurisdiction" (p. 144). 
That the court fixed their rights under the treaty to 
their distributive shares in the fund referred to, and 



18 

''when the court awards those distributive shares its 
authority ends" (pp. 144 and 145). That while the 
court has made its award to the Delawares, Shaw- 
nees, and freedmen as a class, their identity must be 
determined by the Secretary of the Interior. 

The question 'of identity of individuals en- 
titled to the benefits of a treaty, being in its 
nature political and within the Secretary's 
official jurisdiction, the court would adopt his 
determination if the complainants were to be 
named individually in the decree. By placing 
the funds in his hands for distribution and 
prescribing the principles under which they 
are to be distributed and the class of persons 
who are entitled to participate in the distribu- 
tion, and leaving to the Secretary only the re- 
sponsibility of ascertaining and determining 
who those individuals are, the court reaches 
the desired end more quickly and more con- 
veniently than by setting forth in each decree 
the names of the complainants who are en- 
titled to recover (pp. 143 and 144). 
After the disposition of the motions by the court 
the counsel for the freedmen and the Cherokee Na- 
tion withdrew their respective apphcations for appeal 
to the Supreme Court and agreed to the substitution 
of a new decree in the place of the one entered by the 
court. Accordingly, on February 3, 1896, the de- 
cree of May 8, 1895, was vacated and set aside and a 
new decree entered as the final decree of the court in 
the case. 

The decree of February 3, 1896 (Appendix A), 
contained practically the same provisions for the 



19 

distril)ution of (lie jii(l«!;inent of $9(KS,.365 as the 
decree whicli it superseded, except thai it prn\'ided 
for the inakin«j; of a new roll of freedineii. As in 
the previous decree it declared the acts of the Chero- 
kee national council of April 2(), hS.SO, November 
25, 1S9(), and May 3, 1894, by which funds derived 
from the sale of the public domain were distributed 
among Cherokees l)V l)lood to the exclusion of 
adopted citizens and their descendants, to l)e void 
and contrary to and in derogation of the constitution 
of the Cherokee Nation and article 9 of the treaty 
of July 19, 1806, "with respect to the rights of said 
freedmen, who have been liberated by voluntary 
act of their former owners or by law, and all free 
colored persons who resided in the Cherokee country 
at the commencement of the rebellion and who on 
the said date resided therein, or who returned 
thereto within six months thereafter, and their 
descendants; and that the said Cherokee Nation or 
its trustees, the United States, account for, render, 
and pay to the aforesaid freedmen and free colored 
persons and their descendants, out of any funds 
of the said nation in its national treasury, or in the 
custody of the United vStates as trustee, or held by 
agreement between said nation and the United States 
for the purpose of satisfying the decree herein ren- 
dered, not specifically appropriated by law to other 
purposes, or out of funds which may hereafter come 
to the possession of said trustee l)elonging to the 
Cherokee Nation, a sum equal to the aggregate 
amount which said freedmen and free colored per- 



20 

sons and their descendants would have received if 
the above-mentioned void and unconstitutional re- 
strictions in said statutes had not existed." 

The decree next provided that the Cherokee freed- 
men, free colored persons, and their descendants living 
and in being on the 3d day of May, 1894, were enti- 
tled to participate thereafter "in the common prop- 
erty of the Cherokee Nation in the same manner and 
to the same extent as Cherokee citizens of Cherokee 
blood or parentage may be entitled, and that in the 
distribution of the proceeds and avails of the public 
domain or common property of the nation among the 
citizens thereof by distribution per capita at any time 
hereafter, the defendant, the Cherokee Nation, and the 
defendant, the United States, as trustee of the Chero- 
kee Nation, be enjoined and prohibited from, making 
any discrimination between the Cherokee citizens of 
Cherokee blood or parentage and Cherokee citizens 
who are or were freedmen who had been liberated by 
voluntary act of their former owners or by law, as well 
as all free colored persons who were in the Cherokee 
country at the commencement of the rebellion, and 
were residents therein at the date of said treaty, or 
who returned thereto within six months thereafter, 
and their descendants, to the prejudice of the latter, 
it being understood that the freedmen and their 
descendants and free colored persons above referred 
to shall include only such persons of said class as have 
not forfeited or abjured their citizenship of said Cher- 
okee Nation at the date of the entering of this decree." 



21 

'Ihv dvvwv next prox idcil for the distrihution ot the 
judgnuMit of $0(K^,.S()5 lo (ho froodinon, aftoi- the 
deduction of attoi'iicvs' W'i^s and other expenses inci- 
dent to the suit and (listri))ution of the funds, "such 
payments to 1)0 made uj)on a I'oli of said froednien 
and free colored persons and their descendants as 
prepared and approved by the Secretary of the Inte- 
rioi' in accordance witli provisions hereinafter set 
forth in this decree." 

The decree then authorized the Secretary of the 
Interior to appoint three commissioners — one on the 
nomination of the complainant, and one on the nom.- 
ination of the defendant, the Cherokee Nation, both 
to be approved by him, and one on his own nomina- 
tion — " to proceed to the Cherokee country and hear 
the testimony both for and against the identity of all 
freedmen, free colored persons, and their descend- 
ants claiming to be entitled to share in the distribu- 
tion of said $903,365 that may be offered by the 
respective parties to this suit; and that each of said 
parties shall be entitled to be represented before said 
commissioners, either at the taking of testimony in 
the Cherokee country or elsewhere; and that the 
said commissioners in ascertaining the identity of the 
freedmen entitled to share under this decree shall 
accept what is known as the authenticated Cherokee 
roll, the same now l)eing on file in the ofhce of the 
Secretary of the Interior, having been furnished to 
him and purporting to have been taken by the Chero- 
kee Nation in 1880 for the purpose of showing the 



22 

number of freedmen then entitled to citizenship in 
the said nation under the terms of the treaty between 
the United States and the Cherokee Nation, herein- 
before referred to, and their descendants; and the 
said commissioners shall ascertain who of said per- 
sons named on said roll were alive and what descend- 
ants of said persons were alive on May 3, 1894, and no 
evidence shall be accepted by said commission tend- 
ing to disprove the citizenship of any of the persons 
whose names appear upon said roll." 

The decree then provides that when the roll made 
by the said commissioners shall have been approved 
by the Secretary of the Interior that he will cause the 
judgment of $903,365, after deducting costs and 
expenses, to be paid and distributed to persons 
entitled, such payments, however, not to exceed 
$256.34 per capita. 

The decree then in great detail directs how and to 
whom counsel fees, costs, and expenses of the suit and 
distribution of the fund shall be paid, ''and that any 
balance of the amount hereby decreed to said plain- 
tiffs, and not consumed in the per capita payment 
herein provided for, shall be paid over to the Cherokee 
Nation as other moneys provided for in the agreement 
between said nation and the Secretary of the Interior 
hereinbefore referred to." 

The decree then ordered that the Cherokee Nation, 
the defendant, should pay the costs of the suit as 
above provided, ''and that if this judgment and decree 
be not carried out and satisfied within six months 
from the date hereof the claimant may apply to this 



23 

couil for such i'uitlKM- ordci-, relief, or I'cnicdy as the 
phiiiilirt" heriun may (Icein nocossMry, ami thai if any 
further proceeding he had under this decree the rights 
of the attorneys and counsel foi- the plaintiff herein 
to further costs and allowances he reseixcd to be 
hereafter determined and fixed hy the couit, and the 
court reserves the right to make all such fui-ther orders 
in aid hereof as to it may seem meet." 

Soon after the entry of the decree the counsel for 
the respective parties submitted to the court a draft 
of instructions for the guidance of the commissioners 
appointed imder the decree of the court (Appendix 
B). The court decUned to consider the instructions 
in the following indorsement : 

Respectfully referred to the Secretary of the 
Interior. The instructions to be given to the 
commissioners must be determined by him. 
The within, proposed by counsel, seem unob- 
jectionable to the court, except the second. 
But with the approval of the Secretary the 
court will appoint the commissioners selected 
by him commissioners of this court to take 
testimony, which will authorize them to ad- 
minister oaths. 

WiLi.iA!\i A. Richardson. 

February 15, 1896. 

The second paragraph to which the court referred 
as objectionable reads as follows: 

Second. It shall have the same power to 
administer oaths to witnesses, to compel the 
attendance of the same, to compel the pro- 
duction of written testimonv, and to determine 



24 

the admissibility of all evidence offered as the 
Court of Claims would have in making the 
investigation prescribed for said commission. 

On February 18, 1896, the court gave its opinion, 
at the request of the Commissioner of Indian Affairs, 
upon the legal construction of the fifth of the proposed 
instructions referred to the Secretary of the Interior 
on February 15, 1896. The proposed instruction 
reads as follows: 

Fifth. In making the investigation pre- 
scribed in said decree it shall confine itself to 
the identity of the following classes of persons 
only: (1) All persons who had been held in 
bondage by any member of the Cherokee Na- 
tion and who had been liberated by act of law 
or by voluntar}^ act of their owners, and the de- 
scendants of such; (2) all free colored persons 
who were in the Indian Territory at the com- 
mencement of the rebellion and were residents 
thereof at the time of the treaty of July 9, 
1866, or who returned thereto within six 
months after the conclusion and ratification 
of said treaty, and their descendants; (3) all 
of the aforesaid classes who were citizens of 
the Cherokee Nation on May 3, 1894. 

The court in its opinion said: 

The decree in this case follows and refers to 
Article IX of the treaty with the Cherokee 
Nation, July 19, 1866, and the persons therein 
designated are the complainants in this case 
entitled to payment under the decree. 

The court is of the opinion that the clauses 
in that article in these words, '^and are now 



reside fits tin rein, or irlio may return williin six 
months, and their deseeyidants,'^ were intended 
foi- the protiM-tion of the Cherokee Nation, as 
a limitation upon the number of persons who 
might avail themselves of the provisions of the 
treaty; and ('onse(]U(Mitl\' tliat they refer to 
botli the freedmen and the free colored persons 
previously named in the article. That is to 
say, freedmen and the descendants of freedmen 
who did not return within six months are 
excluded from the benefits of the treaty and of 
the decree. 

The court is also of the opinion that this 
period of six months extends from the date of 
the promulgation of the treaty, August 11, 1866, 
and consequently did not expire until February 
11, 1867. 

(31 C. Cls., 140.) 

On February 20, 1896, the Commissioner of Indian 
Affairs prepared a draft of instructions for the com- 
missioners appointed by the Secretary of the Interior, 
which was approved by him on that date, and after- 
wards, on April 21, 1896, formally approved in a 
communication to the Commissioner of Indian Af- 
fairs. The instructions directed that in ascertaining 
the identity of the freedmen the commissioners 
should accept the roll of 1880 and make no inquiry 
respecting it other than to ascertain who of said per- 
sons named on said roll were alive and what descend- 
ants of said persons were alive on May 3, 1894, and 
that no evidence should be accepted tending to 
disprove the citizenship of any of the persons whose 
names appeared on that roll. The Secretary, how- 



26 

ever, stated that no such roll as the authenticated 
Cherokee roll of 1880 was on file in the Interior De- 
partment, but that when Mr. Wallace was making 
up the roll of freedmen, in 1889, who were living on 
March 3, 1883, he was furnished with a copy of the 
roll of 1880 containing the names of 1,874 freedmen. 

The commissioners were directed to enroll only 
such persons as were alive and in being May 3, 1894, 
and were at that time residents of the Cherokee 
Nation, "it being understood that the freedmen and 
their descendants and free colored persons above 
referred to include only such persons of said classes 
as have not forfeited or abjured their citizenship of 
said Cherokee Nation at the date of the entering of 
said decree (February 3, 1896).'' 

The commissioners were finally directed that upon 
the completion of their labors they should "submit 
a schedule of the names of the persons determined 
by you as being entitled to share in the distribution 
of the fund of $903,365 mentioned in the aforesaid 
decree, with a typewritten report of your daily pro- 
ceedings and of all evidence where claimant is not 
admitted by a vote of the majority of said commis- 
sion, and file stenographic notes of all testimony 
taken." 

In the letter of the Secretary approving the in- 
structions he says that it is the duty of the commis- 
sion "to ascertain and determine who are the indi- 
vidual freedmen and free colored persons of the 
Cherokee Nation now entitled to share in the dis- 



11 



Iribulion ut' llu> siiin awarded by said dt'crec of the 
Court of Claims, filed Fel)ruarv 1^, 1S<H)." 

While tlie I'oll was in process of preparation hy the 
eonnnissioners appointed 1»\ tlie Secretary of tlie In- 
terior the attoin(\v foi- tin* freedmen filed, on April 
11. 1S!)(). a motion askinji; the court to instruct the 
commissioners to enroll the names of all those freed- 
men who had been liberated by the voluntary act 
of their owners or by law, and their descendants, as 
provided by the treaty of .July 19, 18(3(3, "and if it 
shall appear to said commission that any person or 
persons of the aforesaid class had l)een taken from 
the Cherokee Nation during the rebellion either by 
the owners thereof or was absent therefrom during 
said time because of his or their belonging to either 
of the armies that were engaged in the late rebellion, 
and were unable to return to the Cherokee Nation 
within six months after the conclusion and ratifica- 
tion of the treaty referred to in the decree in said 
cause, of date July 16, 1866, because of circumstances 
beyond their control, but returned as soon as practi- 
cable, then no such person shall be excluded by said 
commission from the roll to be prepared by it, l)ut 
the same shall be placed thereon, as well as the de- 
scendants of such." 

After full consideration of the question presented 
by the attorney for the freedmen, the court entered 
the following order (Appendix E) : 

The court is of the opinion that the act 2d 
March, 1895 (28 Stat. L., p. 910, sec. 11), pre- 
scribes the manner in which payments per 



28 

capita shall be made and that the matter of 
payment is exclusively within the jurisdiction 
of the Secretary of the Interior. 

The court, after further consideration, ad- 
heres to the opinion communicated to the 
Commissioner of Indian Affairs, February 18, 
1896. 

The within motion for instructions is over- 
ruled. 

April 15, 1896. 

By the court: 

Wm. a. Richardson, 

Chief Justice. 

Mr. Kern, who filed the motion as attorney for the 
freedmen, was also a member of the commission 
which made the '^Kern-Clifton roll." The roll was 
completed in December, 1896, and payment begun 
in February of 1897, under the decree of February 
3, 1896, and all of their proportion of the funds 
derived from the sale of the Cherokee Outlet have 
been distributed per capita to the freedmen whose 
names were found on that roll, the last payment 
having been made about twelve years ago. 

On March 3, 1893 (27 Stat., 645), Congress created 
a commission to the Five Civilized Tribes, commonly 
known as the ''Dawes Commission," for the purpose 
of procuring the extinguishment of the national or 
tribal title to the lands held by the tribes living in 
the Indian Territory, and their cession to the United 
States for allotment in severalty among the members 
thereof. 



2U 

By the act of Juiir 10, ISlKi ('2\) Stal., iiLMj, ("oii- 
gross directed the Dawes Coniinission to make a roll 
of the Five Cixilizcd 'IVihcs, and at I he same time 
ratified the ti'il)al rolls ;is tiiev then existed, so that 
the duty of tlu^ commission was hmited to passiiiji; 
upon the qualihcatioiis of applicants for enrolhnent. 
The act further })ro\ides that : 

The said conunission shall also make a roll 
of freedmen entitled to citizenship in said tribes, 
and shall include their names in the lists of 
members to be filed with the Commissioner of 
Indian Affairs. 

The act of June 7, 1897 (30 Stat., 83), provided: 

That said commission shall continue to exer- 
cise all authoi'ity heretofore conferred on it by 
law to negotiate with the Five Tril)es, and any 
agreement made by it with any of said tribes, 
when ratified, shall operate to suspend any 
provisions of this act if in conflict therewith 
as to said nation: Provided, That the words 
''rolls of citizenship," as used in the act of 
June tenth, eighteen hundred and ninety-six, 
making appropiiations for current and con- 
tingent expenses of the Indian Department 
and fulfilling treaty stipulations with various 
Indian tribes for the fiscal year ending June 
thirtieth, eighteen hundred and ninety-seven, 
shall be construed to mean the last authenticated 
rolls of each tribe which have been approved by 
the council of the nation, and the descendards 
of those appearing on such rolls, and such ad- 
ditional names and their descendants as have 
been subsequently added, either by the council of 



30 

such nation, the duly authorized courts thereof, 
or the commission under the act of June tenth, 
eighteen hundred and ninety-six. And all other 
names appearing upon such rolls shall he open 
to investigation by such commission for a period 
of six months after the passage of this act. 
And any name appearing on such rolls and 
not confirmed by the act of June tenth, 
eighteen hundred and ninety-six, as herein 
construed, may be stricken therefrom by such 
commission where the party affected shall 
have ten days' previous notice that said com- 
mission will investigate and determine the 
right of such party to remain upon such roll 
as a citizen of such nation: Provided also. 
That anyone whose name shall be stricken 
from the roll by such commission shall have 
the right of appeal, as provided in the act of 
June tenth, eighteen hundred and ninety-six. 

On June 28, 1898 (30 Stat., 495), Congress passed 
what is known as the "Curtis Act," by section 21 of 
which the Dawes Commission was directed to make a 
roll of Cherokee citizens as follows: 

Section 21. That in making rolls of citizen- 
ship of the several tribes, as required by law, 
the Commission to the Five Civilized Tribes 
is authorized and directed to take the roll of 
the Cherokee citizens of eighteen hundred and 
eighty (not including freedmen) as the only 
roll intended to be confirmed by this and pre- 
ceding acts of Congress, and to enroll all per- 
sons now living whose names are found on said 
roll, and all descendants born since the date of 
said roll to persons whose names are found 



thereon; and all persons who have heen cn- 
roUed hy the li-ihal autliorities who liave here- 
tofore made permanent settlement in the 
Cherokee Nation whose parents, hy reason of 
their Cherokee blood, have been lawfiill}- 
achnitted to eitizenship by the tribal authori- 
ties, and who were minors when their parents 
were so admitted; and they shall investi<!:ate 
the rio;ht of all other persons whose names are 
found on any other rolls and omit all sueh as 
may have been placed thereon by fraud or 
without authority of hiw, enrolling only such 
as ma}- have lawful right thereto, and their 
descendants born since such rolls were made, 
with such intermarried white persons as may 
be entitled to citizenship under Cherokee laws. 
It shall make a roll of Cherokee freedmen in 
strict compliance with the decree of the Court 
of Claims rendered the third day of February, 
eighteen hundred and ninety-six. 

***** 

After a number of other provisions the act pro\'ides 
in the same section that — 

The rolls so made, when approved by the 
Secretary of the Interior, shall be final, and the 
persons whose names are found thereon, with 
their descendants thereafter born to them, 
with such persons as may intermany ac- 
cording to tribal laws, shall alone constitute 
the several tribes which they represent. 

The act of June 28, 1898, passed the House of 
Representatives as H. R. No. 8581 on April 14, 1898, 
with a provision in section 22 (which on its final 

1429G— 09 3 



32 

passage became section 21), directed to the Dawes 
Commission : 

It shall make a roll of Cherokee freedmen 
in strict compliance with the decree of the 
Court of Claims, rendered the third day of 
February, eighteen hundred and ninety-six. 

The Congressional Record shows that House bill 
No. 8581 (the Curtis bill) was read twice in the 
Senate on April 16, 1898, referred to the Senate 
Committee on Indian Affairs, and reported back to 
the Senate on May 23, 1898, with the following 
proposed amendment to section 22 of the bill, which 
was debated at considerable length : 

The roll of the freedmen of the Cherokee 
Nation m.ade under the provisions of the de- 
cree entered of record in the Court of Claims 
of the United States, February third, eighteen 
hundred and ninety-six, in the case of Moses 
Whitmire, trustee of the freedmen of the Chero- 
kee Nation, against the Cherokee Nation and 
the United States, is hereby confirmed, and 
the Commission to the Five Civilized Tribes 
shall make a roll of said freedmen by adopting 
the aforesaid roll as made in the aforesaid case. 

And it shall add thereto the names of the 
descendants of all persons thereon born since 
May third, eighteen hundred and ninety-four, 
and the names of all persons who applied be- 
fore the commission that made the roll of 
freedmen in said case, and whose names were 
not placed upon either said roll or the rejected 
roll of freedmen made by said commission in 
said case, if in their judgment the evidence 



olToreil hol'orc said coniinission lo the I'ivo 
Civilized 'ri'il)os justifiod ihoir i)oin«2; niadr citi- 
zens of the CluM'okee Nation in accoidance 
witli the provisions of said decree, and the 
descen(hints of said persons horn since May 
thinh ei<!;hteen hnndied and ninety-four; and 
from the roll tiuis madc^ tlie said commission 
shall expuno;e the names of all persons on said 
roll who have died since May third, eit]i;hteen 
hundred and ninety-four, or who shall have 
abjured their citizenship in the Cherokee 
Nation; and the roll as thus made shall l)e 
the final and complete roll of the freedmen of 
the Cherokee Nation, 

On June 7, 1898, the Curtis bill (H. R. No. 8581) 
again came up for discussion in the Senate, and after 
further debate was passed with Senate amendments. 
The above amendment, to confirm the '^ Kern-Clifton 
roll," however, was rejected and stricken out. The 
provision for making the Cherokee freedman roll was 
passed in the identical language in which it had 
passed the House, and in which it finally became a 
law^ in the Cm^tis Act of June 28, 1898. (Congres- 
sional Record, vol. 31, part 6, pp. 5582, 5583.) 

The instructions of the Secretary of the Interior of 
November 23, 1899, to the Commission to the Five 
Civilized Tribes for their guidance in making out the 
roll of freedmen followed literally the language of 
the decree of February 3, 1896, and directed them to 
take the roll of 1880 as the only roll to be used in 
identifying applicants for enrollment under the act 
of June 28, 1898, and that the names of such appli- 



34 

cants must either be found upon that roll or testi- 
mony furnished to trace their ancestry to some freed- 
man whose name should be found upon it. 

On May 14, 1900, the departmental instructions 
of November 23, 1899, were revoked and new in- 
structions issued to the Dawes Commission. After 
discussing the Whitmire case in connection with the 
provision in the act of June 28, 1898, for making 
out the roll of Cherokee freedmen ''in strict com- 
pliance with the decree of the Court of Claims, 
rendered the third day of February, eighteen hun- 
dred and ninety-six," the Secretary said: 

A roll was made under this decree, known 
as the ''Chfton roll," which was approved 
by this department in 1897. It has been 
claimed that said roll contains many names 
not properly belonging there, but whether 
this fact influenced Congress to disregard 
that roll and direct that a new one be made 
in strict compliance with said decree is im- 
material, for the fact remains that the decree 
alone is to be taken as a guide for making the 
roll which your commission is to prepare. 

The roll of 1880, made by the Cherokee 
Nation, is to be accepted by you as conclusive 
of the right of all persons whose names are 
found thereon and of their descendants to be 
enrolled by you. Your only duty in relation 
thereto is to ascertain who of the persons 
named therein are alive and who of their 
descendants are alive and place their names 
on your roll, omitting, however, all who have 
forfeited or abjured their citizenship. 



35 

In (lie roi'iiicr (Icci'cc (he W'jillncc i-oll, after 
l)eiii,i!; ('()i-iV('t(HJ hy addini;- (lie names of de- 
seendants and striking- ofT the names of those 
who had died or ceased to be citizens, was to be 
taken as tlie correct roll of all freedmen, 
free colored persons, and their descendants 
entitled to citizenship. The same explicit direc- 
tion was not .Jiiven in the modified decree as 
to the roll of ISSO. By the former decree the 
►Secretary of the Interior was authorized to 
appoint a connnissioner to ascertain and report 
the facts necessary for the correction of the 
Wallace roll, but in the modified decree he 
was, for the purpose of ascertaining and de- 
terminini2; who are the individual freedmen, 
authorized to appoint three commissioners " to 
proceed to the Cherokee country and hear 
testimony both for and against the identity of 
all freedmen, free colored persons, and their 
descendants claiming to be entitled to share 
in the distribution of said $903,365. " This 
commission was not restricted to ascertainino- 
the facts necessary to complete and bring up 
to date the roll of 1880, but in addition to 
that duty were also to hear testimony both for 
and against the identity of all freedmen, free 
colored persons, and their descendants claim- 
ing citizenship in the Cherokee Nation, but no 
evidence was to be accepted tending to dis- 
prove the citizenship of any person whose 
name appears upon the roll of 1880. Evi- 
dently something more than the completion 
and correction of the roll of 1880 was intended. 
It was intended that a full and complete roll 
should be made that should include the names 



36 

of all freedmen, free colored persons, and their 
descendants entitled to be recognized as citi- 
zens of the Cherokee Nation. It is your duty 
now to make such a roll, which shall include 
the names of all Cherokee citizens "who are 
or were freedmen who had been liberated by 
voluntary act of their former owners or by 
law, as well as all free colored persons who 
were in the Cherokee country at the commence- 
ment of the rebellion and were residents 
therein at the date of said treaty or who re- 
turned thereto within six months thereafter, 
and their descendants." 

The instructions of November 23, 1899, upon 
this subject are hereby revoked. 

(Annual Report of Department of Interior 
for 1902, pt. 2, p. 125.) 

After the issuance of the instructions of May 14, 
1900, Thomas M. Buffington, at that time principal 
chief of the Cherokee Nation, and three other citizens 
of the Cherokee Nation filed a petition in the United 
States District Court at Muskogee for an injunction 
to restrain the Dawes Commission from enrolling the 
names of any Cherokee freedman whose name could 
not be found on the roll of 1880, or who could not 
trace their ancestry to some freedman whose name 
could be found upon that roll. The allegation was 
made " that in proceeding to make such roll they 
[the Dawes Commission] are receiving, considering, 
and making a record of intermarried freedmen and 
other persons who do not appear upon any roll of 
citizens of said nation, or upon the authenticated 



37 

I'oII of ISSO. or ill coini)!'!:!!!!'!' with the (Icci'cc of llu> 
('ourl of Cl.'iiius Mild the ;i.-l of Max- 15 1, !<)()()." The 
District Court took jui'isdidiou of I ho case in an 
int(M'lo('utorv opinion filed in open coui't October 26, 
11)01, in wliich a tonij^orarv injunction was <i;i-antod 
until the Chorokoo Nation should intervene and the 
questions inxolved in the fxMilion he considered uj)on 
their merits. (Annual Report of Department of In- 
terior for 1002, Part 2, \^\^. 121 to 123.) 

The act of May 31, 1900 (31 Stat., 221), referred 
to in the interlocutory opinion of the court, provided: 

That said commission shall continue to ex- 
ercise all authority heretofore conferred on it 
by law; but it shall not receive, consider, or 
make am' record of an}- application of any 
person for enrollment as a member of any 
tri]:)e in Indian Territory who has not been a 
recognized citizen thereof, and duly and law- 
full}' enrolled or admitted as such, and its re- 
fusal of such applications shall be final when 
approved by the Secretary of the Interior. 

The injunction was dissolved on August 25, 1903, 
in a very exhaustive opinion by Judge Raymond, 
and the bill dismissed for want of equity. The court 
said that it was the duty of the Dawes Commission 
in making a roll of the freedmen "in strict compliance 
with the decree of the Court of Claims, rendered the 
third day of February, eighteen hundred and ninety- 
six," to construe the decree of the Court of Claims, 
and the learned judge reached the conclusion that 
the "common property of the Cherokee Nation is 



38 

now about to be divided. It would seem that this 
commission appointed by the Secretary of the Inte- 
rior was for the purpose only of fixing a basis for the 
payment of the $903,365, and not as a basis for 
division of the public lands of the nation." (Annual 
Report of Interior Department for 1904, part 2, pp. 
138-161.) 

The district court in dissolving the injunction took 
the ground that the duties of the Secretary of the 
Interior in making and approving the roll of freedmen 
''in strict compliance with the decree of the Court of 
Claims" were judicial in their character and not sub- 
ject to review by the courts. In this he followed the 
opinion of Judge Sanborn in Kimberlin v. Commission 
to the Five Civilized Tribes, decided October 15, 1900 
(104 Fed. R., 653), where the court in construing the 
act of June 28, 1898, the act under consideration in 
this case, said, speaking of the powers delegated to the 
Dawes Commission : 

Nevertheless, in the determination of the 
citizenship of the parties who apply to them for 
membership in the Five Nations, they are 
vested with judicial powers by the acts of 
Congress. 

Further on the court said : 

Under these acts of Congress the Commission 
to the Five Civilized Tribes is a special tribunal, 
vested with judicial power to hear and deter- 
mine the claims of all applicants to citizenship 
in the Five Tribes, and its enrollment or refusal 
to enroll the applicant in each particular case 



constitutps its jiidniiuMit in lliat cause. In the 
case l)ofore us tliis tril)uu:il has heard and 
detcriniiied tlie claim ol" the plaintiff. Whether 
its decision was ri«!;ht or \vron«!; is immaterial in 
this court, and that ([uestion will not l>e con- 
sidered. Congress saw fit to intrust to the 
judicial discretion of the commission the de- 
termination of the application of the plaintiff 
in error, and of every (juestion of law and of 
fact which that decision involved. Under the 
settled rules to which attention was called in 
the opening of this opinion, no court has juris- 
diction by the use of the writ of mandamus 
to substitute its own opinion for that of the 
tribunal to which the law intrusted the decision 
of these ciuestions, to control the judicial discre- 
tion of that tribunal, to correct its errors, or to 
reverse its decision. The judgments of the 
courts below were right, and they are affirmed 
(pp. 662, 663). 

The Supreme Court, in the case of the Laurel Oil 
and Gas Company v. Robert IT. Morrison et al. (212 
U. S., 291), decided February 23, 1909, said: 

Section 12 of the act of March 3, 1905 (33 
Stat., 1081, c. 1479), in force when the proceed- 
ings in the present case were had, provides: 

" Tliat hereafter all appeals and writs of error 
shall be ta.ken from the Ignited States courts 
in the Indian Territory to the United States 
Court of Appeals in the Indian Territory, and 
from the United States Court of Appeals in 
the Indian Territory to the United States Cir- 
cuit Court of Appeals for the l^ighth Cii-cuit, 
in the same manner as is now provided lor in 



40 

cases taken by appeal or writ of error from the 
Circuit Courts of the United States to the Cir- 
cuit Court of Appeals of the United States for 
the Eighth Circuit." 

We find no statute giving an appeal from 
that Circuit Court of Appeals to this court, 
and perceive no reason for concluding that Con- 
gress intended that parties in such cases should 
])e entitled to three appeals. 

Appeal dismissed. 

On March 22, 1909, in another case from the Eighth 
Circuit, Sass and Crawford v. Minnie Thomas and 
Charley Thomas (214 U. S., 489), the Supreme Court 
dismissed the appeal upon the authority of the Laurel 
Oil and Gas Company case without comment. 

On November 16, 1907, the State of Oklahoma, 
composed of the Indian Territory and the Territory 
of Oklahoma, was admitted into the Union. 

On July 1, 1902 (32 Stat., 716), Congress passed 
another act entitled, ''An act to provide for the 
allotment of the lands of the Cherokee Nation, for 
the disposition of town sites therein, and for other 
purposes," commonly known as the "Cherokee agree- 
ment," v/hich provided that a roll of the Cherokee 
Nation should be made as follow^s: 

Sec. 25. The roll of citizens of the Cherokee 
Nation shall be made as of September first, 
nineteen hundred and two, and the names of 
all persons then living and entitled to enroll- 
ment on that date shall be placed on said roll 
by the Commission to the Five Civilized 
Tribes. 



11 

Skc. 'id. The luimos of all persons livin<; on 
tlio firsl (lay of SoptonilxM'. niiiolccii huiKlrcd 
:i.ii(l two. oii(itl(Ml to 1)(' cni'oilcd as provided 
in section t\v(>nf y-fivc hereof. shn.II l)e j)Ia('e(l 
npon the r(tll ni.-ide by said ( 'oininission. and 
no eliild horn thereafter lo a citizen, and no 
white person who has intermarried with a 
Cherokee citizen since the sixteenth chiy of 
December, eij2;hteen hundred and ninety-five, 
shall l)e entitled to enrollment or to partici- 
pate in the distribution of the tribal property 
of the Cherokee Nation. 

Sec. 27. Such rolls shall in all other respects 
be made in strict compliance with the provi- 
sions of section twenty-one of the act of Con- 
gress approved June twenty-eighth, eighteen 
hundred and ninety-eight (thirtieth Statutes, 
page four hundred and ninety-five), and the 
act of ( ongress approved May thirty-first, 
nineteen hundred (Thirty-first Statutes, page 
two hundred and twenty-one). 

Sec. 28. No person whose name appears 
upon the roll made by the Dawes Commission 
as a citizen or freedman of any other tril)e 
shall be enrolled as a citizen of the dierokee 
Nation. 

Sec. 29. For the purpose of expediting the 
enrollment of the Cherokee citizens and the 
allotment of lands as herein provided, the said 
commission shall, from time to time and as 
soon as practicable, forward to the Secretary 
of the Interior lists upon which shall be placed 
the names of those persons found by the 
commission to be entitled to enrollment. 
The lists thus prepared, when approved by the 



42 

Secretary of the Interior, shall constitute a 
part and parcel of the final roll of citizens of 
the Cherokee tribe upon which allotment of 
land and distribution of other tribal property 
shall be made. When there shall have been 
submitted to and approved by the Secretary 
of the Interior lists embracing the names of 
all those lawfully entitled to enrollment, the 
roll shall be deemed complete. The roll so 
prepared shall be made in quadruplicate, one 
to be deposited with the Secretary of the In- 
terior, one with the Commissioner of Indian 
Affairs, one with the principal chief of the 
Cherokee Nation, and one to remain with the 
Commission to the Five Civilized Tribes. 

Section 2 of the act of April 26, 1906 (34 Stat., 137), 
in part provides : 

That the rolls of the tribes affected by this 
act shall be fully completed on or before the 
fourth clay of March, nineteen hundred and 
seven, and the Secretary of the Interior shall 
have no jurisdiction to approve the enroll- 
ment of any person after said date. 

And section 3 of said act in part provides : 

The roll of Cherokee freedmen shall include 
only such persons of African descent, either 
free colored or the slaves of Cherokee citizens 
and their descendants, who were actual per- 
sonal bona fide residents of the Cherokee 
Nation August eleventh, eighteen hundred and 
sixty-six, or who actually returned and estab- 
lished such residence in the Cherokee Nation 
on or before February eleventh, eighteen hun- 
dred and sixty-seven; but this provision shall 



43 

not jtr(^V('nl i iKMMirolliiKMil of ;iny jxM'son wlio 
lius horolofore made application to the Com- 
mission to the VWo Civilized Tribes or its suc- 
cessor and has been adjiKlf!;ed entitled to en- 
rollment by the Secretary of the Inteiior. 

On January IS, 1906, House bill No. oOTO, Fifty- 
nmth Congress, first session, entitled "A bill to 
provide for the final disposition of the affairs of the 
Five Civilized Tribes of tlie Indian Teri'itory, and 
for other purposes," which aftenvards became the 
act of April 26, 1906 (34 Stat., 137), came up for 
debate in the House of Representatives, and after 
considerable discussion, an amendment was offered 
to section 3 by Mr. Campbell, of Kansas, for the 
purpose of allowing the enrollment of freedmen who 
had not returned to the Cherokee Nation within six 
months from the promulgation of the treaty of Jul>' 
19, 1866, as provided by the 9th article, which 
amendment reads as follows: 

Provided, That the roll of Cherokee freedmen 
shall include the names of all such persons as 
are mentioned in article nine of the Cherokee 
treaty of Jul}' nineteenth, eighteen hundred 
and sixty-six, who made application for such 
em-ollment on or prior to December first, 
nineteen hundred and five, who were taken 
from the nation or driven therefrom under 
circumstances which were beyond their control, 
and who did not, subsequent to August 
eleventh, eighteen hundred and sLxty-six, 
make application for citizenship in any other 
tribe. 



44 

This amendment, however, was rejected and the 
bill became a law in the identical language of section 
3 quoted above. (Congressional Record, vol. 40, 
part 2, pp. 1240, 1248, and 1249.) 

The Cherokee roll was completed and approved 
by the Secretary of the Interior as provided by the 
act of April 26, 1906, supra, on March 4, 1907. 

On October 2, 1909, the following report was 
received from the Department of the Interior: 

Referring to the letter (G. M. A.) of Sep- 
tember 30, 1909, from Assistant Attorney- 
General John Q. Thompson, in regard to the 
eiu-ollment of Cherokee freedmen, you are 
advised that the records of the Department 
of the Interior show that upon the final roll 
of the Cherokee freedmen prepared by the 
commission, or the Commissioner to the Five 
Civilized Tribes, and approved by the Depart- 
ment under the acts of Congress of June 28, 
1898 (30 Stat. L., 495) and July 1, 1902 
(32 Stat. L., 716), there are enrolled 174 freed- 
men whose names are also on the Cherokee 
roll of 1880, but who are not identified on the 
Kern-Clifton roll. 

On September 30, 1907, the attorney for the freed- 
men in the original Whitmire case, No. 17209, R. H. 
Kern, together with two additional attorneys, Messrs. 
Putman & Poe, filed a motion to be allowed to file a 
supplemental petition for the purpose of opening up 
the decree rendered February 3, 1896, and procuring 
from the court the issuance of some kind of an order, 
upon the ground that Congress had used language in 



45 

the acts ol'.Iiiiic "JS, ISDN, ;iii(l .lul\ 1, P.iOL'. in dealing 
witli (he allotnuMit of ("licrokoc lands (>asl ol" tlic 
ninoty-sixth (loi2;reo of west l()ii«!;itu(l(\ which nii«j;ht 
hy inference be supposed to confer jurisdiction upon 
the court to issue sucli order undei- a deci'cc deahn*;- 
witli the proceeds of conunon lands west of the 
ninety-sixth degree of west longitude, and l)ecause, 
as they say, the Dawes Commission, under the act of 
July 1, 1902, "has made a roll of freedmen, including 
persons not on the court's roll and excluding persons 
on the court's I'oll, and even persons on the i-oll of 
ISSO, as made by the Cherokee Nation itself." 

The court, of its own motion, upon the filing of 
the claimants' motion and supporting brief, without 
waiting for the defendants' brief, remanded the case 
to the law calendar for oral argument for the reasons 
stated in a memorandum attached thereto, which 
reads as follows: "Has not the act under which the 
suit of Whitmire was originally brought peformed 
its office? Is it not too late now to bring the suit 
contemplated by the supplemental petition"? " 

On April 20, 1908, over one year after the Cherokee 
final rolls had been completed and approved by the 
Secretary of the Interior, an order was passed by the 
court allowing the appointment of a substitute 
trustee and the fifing of the claimant's supplemental 
petition. The petition contains the following prayer 
for re fief: 

The premises considered, your petitioner 
prays that this honorable court will pass a 
decree declaring the action of the said Dawes 



46 • 

Commission and the Secretary of the Interior 
whereby the names of said freedmen were 
excluded from the roll and citizenship of the 
Cherokee Nation be declared to be unlawful, 
and further enjoining and prohibiting the de- 
fendants, the Cherokee Nation, and the United 
States, as trustee for the Cherokee Nation, 
from making any discrimination between the 
said freedmen and other citizens of the Chero- 
kee Nation in the allotment of lands and dis- 
tribution of the said property and assets of 
said nation, and further enjoining the said de- 
fendant, and particularly the United States 
acting through the Secretary of the Interior, 
from further disturbing said freedmen in the 
possession and occupation of their said homes 
and improvements, and further enjoining upon 
the said defendant, the United States acting 
through the Secretary of the Interior, to rein- 
state such of said freedmen as have hereto- 
fore been ousted from the occupancy and pos- 
session of their said homes and improvements. 

ARGUMENT. 
The purpose for which this suit was instituted. 

The primary object of the institution of this suit 
was to determine the right of the Cherokee freedmen 
to participate in the per capita distribution of the pro- 
ceeds derived from the sale of lands west of the ninety- 
sixth degree of west longitude, and incidentally the 
right of such freedmen to participate in the per capita 
distribution of any funds derived from the sale of the 
Cherokee pubHc domain. Since the removal of the 
Cherokee Indians from their old homes in the east to 



tlio Indian TcMTitory, and llicir set t Icnicnl upon the 
lands conijirisiiij;- the })ul)lic domain of tlip Cherokee 
Nation, up (o the present time no lands have been 
sold 1)\- the Cherokee Nation east of the ninety-sixth 
degree of west lonnituchv At various times, how- 
ever, lands were ceded to tlie United States west of 
the ninety-sixth degree of west longitude, until finally 
the nation parted with all of its lands west of the 
ninety-sixth degree of west longitude in the sale of 
the Cherokee Outlet. By the act of March 2, 1889, 
supra, Congress authorized the President to appoint 
a commission to negotiate for the cession of the Chero- 
kee Outlet. 

Congress in the jurisdictional act of October 1, 
1890, supra, authorized this court to determine the 
right of the Delawares, Shawnees, and freed men to 
participate in the per capita distribution of the pro- 
ceeds derived from the sale, leasing, or rent of the lands 
west of the ninety-sixth degree of wTst longitude; and 
while the adjudication of this question necessarily 
involved the determination of the right of the Dela- 
wares, Shawnees, and freedmen to participate in the 
distribution of the funds derived from the sale of the 
common property of the tribe, the jurisdictional act 
did not authorize a judgment or decree for that pur- 
pose. Paragraph 6 of article 2 of the Tahlequah 
agreement of December 19, 1891, supra, for the ces- 
sion of the Cherokee Outlet, distinctly recognizes the 
fact that suits had been authorized to determine the 
beneficiaries of the proceeds of the cession. 

14296—09 4 



48 

Congress also recognized the fact that the suits of 
the Delawares, Shawnees, and freedmen were brought 
for their pro rata shares of the proceeds of the Chero- 
kee Outlet. The act of March 2, 1893, appropriating 
the compensation for the cession of the Cherokee Out- 
let, provided that a sufficient amount to pay the Del- 
awares, Shawnees, and freedmen their pro rata share 
of the proceeds of the Cherokee Outlet should remain 
in the Treasur}^ until their status should be deter- 
mined by the courts. 

The object of this suit was also clearly recognized 
by this court in its opinion delivered on March 4, 1895 
(30 C. Cls., 138). The court then held that, as a 
general proposition, under the treaty of July 19, 1866, 
supra, and the Cherokee constitution of the same 
year, the freedmen were equally interested as a class 
with other citizens of the Cherokee Nation in the com- 
mon property, and its proceeds when distributed per 
capita, but refused, however, to enter a decree " that 
the freedmen are entitled to participate with all the 
other members of the nation in all of the remaining 
common property upon equal terms with the other 
members of the nation," upon the ground that there 
might exist among the common property of the na- 
tion trust estates for the benefit of designated indi- 
viduals or communities over which " the Cherokee 
government has no legitimate control," and in which 
"the freedmen have no interest." The court said 
that when it was informed of the number of freedmen 
entitled to participate in the various funds which had 
been distributed by act of the Cherokee national 



41) 

council (\\('liisi\('ly to " Clicrokccs l»y hlood." // 
icoulil fix the affiounl of (he jitdf/ment und cnlcr a final 
decree for its (h'strlbiilion niitomi Ihosc entitled. 

TluM'ourt in its second opinion in this ciise del i\-cred 
on March 18, 1895 (30 (\ (Ms., 18(J), fixed the amount 
of its jud«i:ment in fa\'oi- of the Chei-okee fi-eedmen at 
$903, oGo, or $250. o4 per eopild, \vss counsel fees, 
expenses for makin*;- the roll, and distribution of the 
fund, etc. Before entering the decree for the distri- 
bution of the judgment the court said : 

This is not an action to recover damages in 
the nature of a suit at law, nor is it a pro- 
ceeding in equity to wind up and dispose of the 
affairs and assets of a partnership. It is simply 
a suit in equity, brought by the equitable owners 
of a specific fund to recover their proportionate 
share in the same. The jurisdictional act rec- 
ognizes this principle, for it authorizes suits 
to be brought for the proportionate shares 
of the parties in funds derived from the sale 
or leasing of lands of the Cherokee Nation. 
The court can not go beyond this if it would, and 
no court of equity will award to a party more 
than he is legally and equitably entitled to, 
because a party having a right to share in the 
fund is not within the jurisdiction of the 
court (p. 188). 

The jurisdictional act of October 1, 1890, did not 
authorize or contemplate the institution of suits in this 
court for the determination of the rights of Delawares, 
Shawnees, and freedmen to allotments in the tribal 
lands east of the ninety-sixth degree of west longitude. 
This construction of the jurisdictional act was fully 



50 

recognized by Congress in section 25 of the Curtis 
Act of June 28, 1898 (30 Stat., 490), when it gave this 
court jurisdiction to hear and adjudicate a suit 
brought by the Delawares '' for the purpose of deter- 
mining the rights of said Delaware Indians in and to 
the lands and funds of said nation, under their con- 
tract and agreement with the Cherokee Nation dated 
April eighth, eighteen hundred and sixty-seven." 
Under this act the Delawares brought a suit which 
was decided by the court on February 2, 1903 (38 
C. Cls., 234), and affirmed by the Supreme Court on 
appeal February 23, 1904 (193 U. S., 127), in which 
it was held by both courts that the registered Dela- 
wares were "entitled to participate equally with 
Cherokee citizens of Cherokee blood in the allotments 
of lands," and that the jurisdictional act and the suit 
instituted thereunder were necessary for the accom- 
plishment of that purpose. 

The rights of the Delawares, Shawnees, and freed- 
men to institute suits under the jurisdictional act of 
October 1, 1890, were coextensive and identical, and 
if it was necessary for the Delawares to secure a 
jurisdictional act to entitle them to have their status 
in regard to the lands east of the 96th degree of west 
longitude determined, it was equally necessary for 
the freedmen. 

The purpose for which the decree of February 3, 1896, was 
entered. 

The sole purpose for which the decree of May 8, 
1895, and the subsequent decree of February 3, 1896, 
were entered by the court was for the distribution of 



51 

the judj2;ment of $903,305 oiilcivd in favoi- of tlio 
Cherokee freedmeii. 

The decree of >hiy 8, 1895, entered in accordance 
with the opinion of March 18, 1895, provided that 
the " corrected Wallace roll" should be adopted as the 
basis for a roll to be made and api)roved by the Secre- 
tary of the Interior, and the Secretary of the Interior 
was directed to distribute the judgment, after deduct- 
inii; attorneys' fees, expenses, etc., among the Chero- 
kee freedmen whose names should be found upon such 
roll, and the balance left, after the designated pay- 
ments, was directed to be paid over to the Cherokee 
Nation by the Secretary. 

After the entry of the decree of May 8, 1895, the 
attorneys for the Delawares, Shawnees, and freed- 
men filed motions in their respective cases asking the 
court to reopen the decree and increase their per 
capita to $295.35, the amount distributed per capita 
by the Cherokee government to Cherokees by blood. 
In the case of the freedmen the motion also requested 
the court to appoint commissioners to reascertain the 
numljer of freedmen entitled to participate in the dis- 
tribution of the judgment. All of the motions were 
considered by the court at the same time. In the 
case of the freedmen the Cherokee national council 
had passed an act giving them the amount per capita 
requested in the motion. The court, however, on 
January 27, 1896, overruled the motion as follows 
(31 C. Cls., 140-147): 

In the case of Whitcmirc, trustee, v. The 
Cherokee Nation, the application of the claim- 



52 

ant to reopen the decree and for the appoint- 
ment of commissioners to reascertain the num- 
ber of the freedmen and for judgment for 
$1,300,000 is overruled. 
The court in its opinion said that it could not 
allow a larger award to the freedmen than was con- 
templated by the jurisdictional act of (3ctober 1, 
1890 (26 Stat., 636), simply because the Cherokee 
Nation had consented to the increase. In other 
words, "consent does not confer jurisdiction" (p. 144). 
The court in the same opinion, fixed their rights 
under the treaty, to their distributive shares in the 
fund referred to, and said that ''when the court 
awards those distributive shares its authority ends." 
That while the court has made its award to the Dela- 
wares, Shawnees, and freedmen as a class, their iden- 
tity must be determined by the Secretary of the 
Interior. 

The question of identity of individuals en- 
titled to the benefits of a treaty, being in its 
nature political and within the Secretary's 
official jurisdiction, the court would adopt his 
determination if the complainants were to be 
named individually in the decree. By placing 
the funds in his hands for distribution and 
prescribing the principles under which they 
are to be distributed and the class of persons 
who are entitled to participate in the distribu- 
tion, and leaving to the Secretary only the 
responsibility of ascertaining and determining 
who those individuals are, the court reaches 
the desired end more quickly and more con- 



voni(Mill\' tlmii l)y s(>ttii»<i; forth in each (Iccrco 
tlu^ names of tlio coniplaiiiaiils who arc vn- 
tillod to r(H'ov(M- (pp. 1 Jo and 111). 

The Cherokee Nation was dissatisfied with l)oth 
tlie amount of the ju(l.i!;m(Mit and th(^ "Wallaee roll" 
under whieh it was ordered to be paid. It was, 
however, more dissatisfied with the "Wallace loU'' 
than with the judgment, and it was agreed between 
the counsel for both parties that the judgment should 
stand, the applications for appeals be withdrawn, 
and a new decree entered, ordering; a new roll to be 
prepared, and the judpiient to be paid, per capita, 
to the freedmen found upon such court roll. The 
court accordingly, on February 3, 1896, entered a 
new decree in which it directed that the judgment 
of $903,365 should be distributed per capita among 
the freedmen who should be foimd upon a roll made 
by three commissioners appointed by the Secretary 
of the Interior, and afterwards approved by him. 

The decree of February 3, 1896 (Appendix A), 
provided for the making of a new roll, otherwise it 
contained practically the same provisions for the 
distribution of the judgment of $903,365 as the 
decree it superseded. As in the previous decree, the 
acts of the Cherokee National Council of April 26, 
1886, Novem])er 25, 1890, and May 3, 1894, appro- 
priating funds derived from the sale of the public 
domain among Cherokees by blood exclusively, were 
declared to be void and contrary to and in derogation 
of the constitution of the Cherokee Nation and arti- 
cle 9 of the ti-eaty of July 19, 1866, sujirn, "with re- 



54 

spect to the rights of said freedmen, who have been 
liberated by vohmtary act of their former owners or 
by law, and all free colored persons who resided in 
the Cherokee country at the commencement of the 
rebellion and who on said date resided therein, or 
who returned thereto within six months thereafter, 
and their descendants." The decree then provided 
the manner in which the judgment shall be paid out 
of funds of the Cherokee Nation in the hands of the 
United States, "si sum equal to the aggregate amount 
which said freedmen and free colored persons and 
their descendants would have received if the above- 
mentioned void and unconstitutional restrictions in 
said statutes had not existed." 

The decree then provided that the Cherokee freed- 
men, free colored persons and their descendants, 
living and in being on the 3d day of May, 1894, 
were entitled to participate thereafter ''in the com- 
mon property of the Cherokee Nation in the same 
manner and to the same extent as Cherokee citizens 
of Cherokee blood or parentage may be entitled, and 
that in the distribution of the proceeds and avails of 
the public domain or common property of the na- 
tion among the citizens thereof by distribution per 
capita at any time hereafter the defendant, the 
Cherokee Nation, and the defendant, the United 
States, as trustee of the Cherokee Nation, be en- 
joined and prohibited from making any discrimina- 
tion between Cherokee citizens of Cherokee blood or 
parentage and Cherokee citizens who are or were 
freedmen who had been liberated by vohmtary act 



of tluMr lorincr owiicis or hy law, as well as all free 
colored persons who were in (he Cherokoo coiinlry 
at the ('oiiiineiicenuMit of the relx'llioii, and were 
residents therein at the date of said treiity, or who 
i-etnrned thereto within six months thereafter, and 
tiieii- descendants, to the prejudice of the hitter. It 
beino: understood that the freedmen and their de- 
scendants and free colored persons al)ove referred to 
shall include only such persons of said class as hiive 
not forfeited or abjured their citizenshij) of said 
Cherokee Nation at the date of the entering of this 
decree." 

The decree then provided for the distrilmtion of 
the judgment of $903,365 to the freedmen, after 
deducting attorneys' fees and other expenses inci- 
dent to the suit, "such payments to be made upon 
a roll of said freedmen and free colored persons and 
their descendents as prepared and approved l)y the 
Secretary of the Interior in accordance with the pro- 
visions hereinafter set forth in this decree." 

The decree authorized the Secretary of the Interior 
to appoint three commissioners, one on the nomina- 
tion of the complainant, and one on the nomination 
of the defendant, the Cherokee Nation, both to be 
approved by him, and one on his own nomination, 
"to proceed to the Cherokee country and hear the 
testimony both for and against the identity of all 
freedmen, free colored persons and their descendants, 
claiming to be entitled to share in the distribution of said 
$903,365 J that ma\- be offered by the respective par- 
ties to this suit ; and that each of said parties shall be 



56 

entitled to be represented before said commissioners 
either at the taking of testimony in the Cherokee 
country or elsewhere." 

The decree then substitutes the Cherokee roll of 
1880 for the corrected Wallace roll as a basis for 
making the new roll. The language of the decree 
would appear to indicate that the court intended 
that only those freedmen and free colored persons 
whose names should be found on the roll of 1880, or 
their descendants, should be placed upon the roll 
prepared by the Secretary of the Interior for the dis- 
tribution of the judgment. The decree on this point 
reads as follows: 

Said commissioners in ascertaining the iden- 
tity of the freedmen entitled to share under 
this decree shall accept what is known as the 
authenticated Cherokee roll, the same now 
being on file in the office of the Secretary of 
the Interior, having been furnished to him 
and purporting to have been taken by the 
Cherokee Nation in 1880, for the purpose of 
showing the number of freedmen then entitled 
to citizenship in the said nation under the 
terms of the treaty between the United States 
and the Cherokee Nation, hereinbefore re- 
ferred to, and their descendants; and the said 
commissioners shall ascertain who of said per- 
sons named on said roll were alive and what 
descendants of said persons were alive on May 3, 
1894, «^c? no evidence shall he accepted by said 
commission tending to disprove the citizenship 
of any of the persons whose names appear upon 
said roll.- 



57 

The (]o(M'(M^ (lu'ii j)r()\i(l('(l lluit when the loll had 
been iiiade ami aj)pr()V('(l l)y (Ik* Sccrctai-y ol' the 
Interior he should cause the judirinent of $9(Ki)^()r>, 
after deduetin<j; costs and expenses, to ))e distril)uted 
to the citizens entitled, the payments not to exceed 
$256.34 /)(•/• capita. 

The decree then in «j;reat detail directs how and to 
wlioin counsel fees, costs, and expenses of the suil and 
distribution of the judgment shall be ])ai(l. It jtio- 
vides that any balance left over, and not consumed 
in the per capita payments, shall be paid over to the 
Cherokee Nation. 

The decree then directed that the Cherokee Nation 
should pay the costs of the suit, "and that if this 
judgment and decree be not carried out and satisfied 
within six months from the date hereof the claimant 
may apply to this court for such further order, relief, 
or remedy as the plaintiff herein may deem neces- 
sary." 

The concluding language of this quotation from the 
decree has been eagerly seized upon by the attorneys 
for the petitioner in this case as showing that ''the 
court reserves the right to make all such further or- 
ders in aid hereof as to it may seem meet," as though 
the words "in aid hereof" had been omitted and the 
language used had been intended as an independent 
sentence. What the court really meant by this lan- 
guage was, that if the judgment should not be satisfied 
within six months from the date of the decree, it would 
issue such further order as might be necessar>' in aid 



58 

of its distribution of the judgment as contemplated 
by the decree. 

The opinion of the court and the language of the 
decree show conclusively that the only purpose the 
court had in view was the distribution of the judg- 
ment of $903,365, less counsel fees, costs, and ex- 
penses, among the Cherokee freedmen whose names 
should be found on the Cherokee roll of 1880, or who 
could trace their descent from some ancestor on that 
roll. The Secretary of the Interior was directed to 
prepare and approve the final roll, but he was limited 
to those fieedmen on the roll of 1880 and their de- 
scendants. 

The Secretary of the Interior was invested with exclusive juris- 
diction to malie the Kern-Clifton roll. 

The court in its opinion, rendered on January 27, 
1896, in overruling the motions of the Delawares, 
Shawnees, and freedmen to reopen the decree of May 
8, 1895, said that while the court had made its award 
to the Delawares, Shawnees, and freedmen as a class, 
their identity must be determined by the Secretary 
of the Interior. 

Soon after the entry of the decree of February 3, 
1896, counsel for the respective parties submitted to 
the court a draft of instructions for the guidance of 
the commissioners appointed by the Secretary of the 
Interior under the decree of the court (Appendix B). 
The court declined to consider the proposed instruc- 
tions in the following indorsement : 

Respectfully referred to the Secretary of the 
Interior. The instructions to be given to the 



51) 

coniniissioners nuist \)v (IcIcM-iniiicd l)\' him. 
'Vhv within, {)rc){)()so(l hy counsel, seem uiioh- 
jectionahle to the court, except tlie second. 
But, with the approval of tlie Secretaiy, the 
court will appoint the coninnssioners selected 
hy him connnissioners of tliis court to take 
testimony, which will authorize them to ad- 
minister oaths. 

WlLMAM A. 1\I(I1A1U)S().\. 

February 15, 1896. 
The second paragraph to which the court referred 
is as follows: 

Second. It shall have the same power to 
administer oaths to witnesses, to compel the 
attendance of the same, to compel the pro- 
duction of written testimony, and to deter- 
mine the admissibility of all evidence offered 
as the Court of Claims would have in making 
the investigation prescribed for said commis- 
sion. 

The court refused to give any instructions to the 
commissioners, upon the ground that that matter 
rested entirely within the discretion of the Secretary 
of the Interior. It was noticed, however, that the sec- 
ond paragraph of the proposed instructions would have 
given to the commissioners appointed by the Secre- 
tary power and authority which could only be con- 
ferred by Congi'ess, and the court suggested to the 
Secretary that this could be obviated by making the 
commissioners commissioners of the Court of Claims 
to take testimony. On February 18, 1896, at the 
request of the Commissioner of Indian Affairs, the 



60 

court gave its opinion (Appendix C; 31 C. Cls., 140) 
on the legal construction of the fifth of the proposed 
instructions referred to the Secretary of the Interior 
on February 15, 1896. 

This instruction (Appendix B) was the construction 
placed upon article 9 of the treaty of July 19, 1866, 
by counsel of the parties. Thus it will be seen that 
the court still absolutely refused to give any instruc- 
tions to the Secretary of the Interior as to the identity 
of the individuals who should be placed upon the 
Kern-Clifton roll. 

On February 20, two days after the receipt of 
the opinion of the court, the Commissioner of Indian 
Affairs prepared a draft of instructions for the com- 
missioners appointed by the Secretary of the Interior, 
which was approved by him on that date, and after- 
wards, on April 21, 1896, formally approved in a 
communication to the Commissioner of Indian Af- 
fairs. The instructions directed that in ascertaining 
the identity of the freed men the commissioners 
should accept the roll of 1880, and make no inquiry 
respecting it other than to ascertain who of said per- 
sons named on said roll were alive, and what descend- 
ants of said persons were alive, on May 3, 1894, and 
that no evidence should be accepted tending to dis- 
prove the citizenship of any of the persons whose 
names appeared on that roll. 

It may be stated, however, that the roll on file in 
the Interior Department of 1880 contained at the 
time it was furnished to Mr. Wallace in 1889 the 



iKiiiu's ol 1.S71 li'cf'diiKMi. A iiiimhcr wcic, lioucxci', 
afterwards added to i(. and wIumi ihc I'oll of INSO was 
used in making the first diytrihution to tlie Dela- 
wares and Sliawnoos /wr nipita, as tluMi- proportion of 
the moneys paitl to tlie Cherokees l)y l)loo(l cxchi- 
sively, there were 2,052 on the roll. 

The commissioners were directed to eni'oll only 
such persons as were alive and in heinj:; on May 3, 
1894 (the date of the last Cherokee exclusion act), 
and wen^ at that time residents of the Cherokee 
Nation, "it l3eing- understood that the freedmen and 
their descendants and free colored persons jd)ove 
referred to include only such persons of said classes 
as have not forfeited or al:>jured their citizenship of 
said Cherokee Nation at the date of the entering of 
said decree (Fel)ru:iiy 3, 189())." 

The commissioners were finally directed upon the 
completion of their labors to submit a schedule of the 
names of persons determined by them "as being 
entitled to share in the distribution of the fund of 
$903,365 mentioned in the aforesaid decree," together 
with a typewritten report of the daily proceedings 
and all evidence where a claimant was not admitted 
by vote of the majority of the commission. They 
were directed to file a report of all stenographic notes 
taken. The directions, so far as the filing of the sten- 
ographic notes of all the testimony taken was con- 
cerned, do not appear to have been followed. 

In the letter of the Secretary approving the in- 
structions he says it was the duty of the commission 



62 

"to ascertain and determine who are the individual 
freedmen and free colored persons of the Cherokee 
Nation now entitled to share in the distribution of the 
sum awarded by said decree of the Court of Claims, 
filed February 3, 1896." 

On April 15, 1896, the Court of Claims decided the 
identical question involved in this controversy, and 
it came before them for consideration in the following 
manner: On April 14, 1896, a motion was filed in 
the case by the attorney for the freedmen requesting 
the court to instruct the commissioners to enroll the 
names of all those freedmen who had been liberated 
by voluntary act of their former owners or by law, 
and their descendants, as provided by the treaty of 
July 19, 1866, ''and if it shall appear to said commis- 
sion that any person or persons of the aforesaid class 
had been taken from the Cherokee Nation during the 
rebellion either by the owners thereof, or was absent 
therefrom during said time because of his or their 
belonging to either of the armies that were engaged 
in the late rebellion, and were unable to return to the 
Cherokee Nation within six months after the conclu- 
sion and ratification of the treat 3^ referred to in the 
decree in said cause of date July 19, 1866, because of 
circumstances beyond their control, but returned as 
soon as practicable, then no such person shall be 
excluded by said commission from the roll to be 
prepared by it, but the same shall be placed thereon, 
as well as the descendants of such." (Appendix E.) 



The court on those iiisti-uctioiis indorsod (ho lol- 
lowuij!; opniioii. wliich is also I'ound ol record in \\\r 
last opinion of the court in this case {'.U C ('Is., 140): 

The* C0U1I is ol" (ho opinion tli:i( (jio act 2d 
March, 1895 (2S Stat. L., {). 910, see. 11), 
prescribes the manner in which payments per 
capita shall \)v made and that the mattoi* of 
payment is exclusively within the jurisdiction 
of the Secretary of the Interior. 

The court, after further consideration, ad- 
heres to the opinion communicated to the 
Commissioner of Indian Affairs, February 18, 
189(). 

The within motion for instructions is over- 
ruled. April 15, 1896. 

By the court: 

Wm. a. Richardson, 

Chief Justice. 

The Kern-Clifton roll was completed in December, 
1896, and payment was begun in February, 1897, 
under the decree of February 3, 1896, and all of 
their proportion, derived from the sale of the Cherokee 
Outlet, has been distributed per capita, the last 
payment having been made about twelve years 
ago; and the decree so far as the purposes of this 
suit are concerned has performed its office. Of 
course it may be used as a guide in making other 
rolls, but so far as this court is concerned its vitality 
has been exhausted. Those freedmen who have 
been excluded from the Kern-Clifton roll by the 
opinion of the court of February 18, 1896, and 

14296—09 5 



(34 

whose claim the court again on March 15, 1896, 
refused to consider, were for the most part placed 
upon the roll by order of the Secretary of the In- 
terior after the matter had been referred to him. 
It is clear therefore that the Secretary of the Interior 
did not confine himself to the Cherokee roll of 1880, 
as directed by the decree of February 3, 1896, and 
this was the reason Congress in the act of June 28, 
1898, supra, directed the Dawes Commission to 
"make a roll of Cherokee freedmen in strict com- 
pliance with the decree of the Court of Claims 
rendered the third day of February, eighteen hundred 
and ninety-six," and afterwards reenacted the same 
in the act of July 1, 1902, supra. 

The Dawes Commission in making out the new 
roll at first considered only the applications of 
freedmen whose names were found on the roll of 
1880, or their descendants, but on May 14, 1900, 
the instructions of November 23, 1899, were revoked 
and new instructions were issued to the commission, 
in which it was said that something more than the 
completion and correction of the roll of 1880 was 
intended by the decree of the court; that a full and 
complete roll should be made, that should include 
the names of all freedmen, free colored persons and 
their descendants entitled to be recognized as citi- 
zens of the Cherokee Nation; that it should include 
the names of all Cherokee citizens ''who are or 
were freedmen who had been liberated by voluntary 
act of their former owners or by law, as well as all 



free coloreil persons wlio weic in tlie Cherokee coun- 
try at the coniniencenient of the rel)elH<)n and were 
residents thcM-ein at the date of said ti-eaty or who 
returned tliereto within six months tliereafler, and 
their descendants." 

In conseciuence of the clianf^'e of instructions l)y 
the Interior Department, the })i-incipal cliief of the 
Cherokee Nation, Thomas M. I^u(hn«iton, and three 
other citizens of the Cherokee Nation filed a petition 
in the United States District Court at Muskogee for 
an injunction restraining the Dawes Commission 
from enrolling- any freedman whose name could not 
be found on the roll of 18S0, or who could not trace 
his ancestry to some freedman whose name should 
appear on said roll. The allegation was made 
" that in proceeding to make such roll they [the 
Dawes Commission] are receiving, considering, and 
making a record of intermarried freedmen and other 
persons who do not appear upon any roll of citizens 
of said nation, or upon the authenticated roll of 
1880, or in compliance with the decree of the Court 
of Claims and the act of May 31, 1900." 

A temporary injunction was granted, for the rea- 
sons set out in the opinion filed in open court on 
October 26, 1901, until the Cherokee Nation should 
intervene and the questions involved in the petition 
considered upon their merits. (Annual Report De- 
partment of the Interior, 1902, pt. 2, pp. 121-123.) 

The complaint of the petitioners in the supple- 
mental petition recently filed in this case by consent 



66 

of the court is practically the same complaint made 
by Buffington et al. in their suit in the United States 
District Court — that the Dawes Commission under 
the act of July 1, 1907, '' has made a roll of freedmen, 
including persons not on the court's roll and exclud- 
ing persons on the court's roll, and even persons on 
the roll of 1880, as made by the Cherokee Nation 
itself." 

The United States District Court in the opinion in 
the Buffington case considered not only the language 
used in the act of June 28, 1898, directing the roll to 
be made " in strict compliance with the decree of the 
Court of Claims, rendered the third day of February, 
eighteen hundred and ninety-six," but also the act 
of May 31, 1900 (31 Stat., 221). 

On August 25, 1903, Judge Raymond dissolved 
the temporary injunction in the Buffington case and 
dismissed the bill for want of equity. The court said 
that it was the duty of the Dawes Commission in 
making a roll of freedmen '' in strict compliance with 
the decree of the Court of Claims, rendered the third 
day of February, eighteen hundred and ninety-six," 
to construe that decree. The court said also that as 
the tribal property was about to be divided " it would 
seem that this commission appointed by the Secre- 
tary of the Interior was for the purpose only of fixing 
a basis for the payment of the $903,365, and not as a 
basis for division of the public lands of the nation." 

In dissolving the injunction the court took the 
ground, upon the authority of the case of Kimherlin 
V. Commission to the Five Civilized Tribes (104 Fed. 



()7 

R., 653), that the duties of the Secretary ol the 
Interior in niakin<2; and approving; (he loll of freechnen 
"in strict conii^hance with the decree of the Court of 
Chiims" wei'e ju(Hcinl in their character and not 
subject to review l)y I he courts. (Aiuiual lieport 
Interior Department, 1904, pt. 2, pp. i:is-l()l.) 

Judge Sanl)oni in the Kinibcrlin case, supra, said 
that the Dawes C'onnnission in passing upon the 
chiinis of citizenship in the C'herokee Nation was 
vested with judicial powers by acts of Congress; that 
the commission was a special tribunal \'ested with 
judicial power to hear and determine the claims of 
applicants, and that its enrollment or refusal to enroll 
in any particular case constituted its judgment; that 
whether its decision was right or wTong was immaterial 
in any other court, and that the question would not be 
considered; that no court had jurisdiction by the use 
of mandamus to suljstitute its own opinion for that of 
a tribunal to which the law had intrusted the decision 
of the c|uestions, or to control the judicial discretion of 
that tribunal, correct its errors, or reverse its decision. 

The opinion of Judge Sanborn was rendered on 
October 15, 1900, in construing the Curtis Act of June 
28, 1898, and previous acts of Congress. The Curtis 
Act is the one which is really under discussion by this 
court. 

The Supreme Court in the case of the Laurel Oil 
and Gas Company v. Morrison et al. (212 U. S., 291), 
decided February 23, 1909, and afterwards followed 
in the case of Sass v. Thomas (214 U. S., 489), dis- 
missed the appeals from the Eighth United States 



68 

Circuit upon the ground that that court was the 
court of last resort for cases from United States 
courts of the Indian Territory. This case arose, 
like the case at bar, prior to the admission of Okla- 
homa into the Union on November 16, 1907. 

Congress in passing section 27 of the act of July 1, 
1902 (32 Stat., 716), passed it with the construction 
placed upon section 21 of the act of June 28, 1898, by 
Judge Sanborn in his opinion in the Kimberlin case. 
This we may presume upon the authority of the case 
of Sessions v. Romadka (145 U. S., 41, 42), where the 
Supreme Court said : 

This was practically the construction given 
to corresponding sections of the act of 1837 
by this court in Smith v. Nichols (21 Wall., 
112) and, in the Revised Statutes, in Dunbar 
V. Myers (94 U. S., 187, 193). * * * Con- 
gress, having in the Revised Statutes adopted 
the language used in the act of 1837, must be 
considered to have adopted also the construc- 
tion given by this court to this sentence and 
made it a part of the enactment. 

The same principle was afterwards laid down by 
the Supreme Court in Clajlin v. Commonwealth In- 
surance Company (110 U. S., 81) and in The Abhots- 
ford{98V. S., 440). 

The construction of Judge Sanborn must necessa- 
rily have been known to Congress because the opin- 
ions in both the Buffington and Kimberlin cases were 
set out in full in the annual reports of the Secretary of 
the Interior to Congress. 



69 

For llio same reasons the construction placed by 
the Interior Department on section 21 of tlie act of 
»lun(> L\S, 189S, may he presumed to liav<' inlluenccd 
Congress in passing legislation sul)se(juent lo that 
act. See Brown v. I'nitcd States (113 U. 8., .568), 
where the question in\()lved the construction of a 
statute as to whether "any officer of the navy" 
included warrant officers or only commissioned of- 
fieers. 

Thus in summing up under this heading it may Ije 
said that the court in holding on April 15, 1896, that 
the Secretary of the Interior had exclusive jurisdic- 
tion of the making of the Kern-Clifton roll under the 
decree of February 3, 1896, definitely settled that 
question, even though the decision might have been 
erroneous, for as this court held in the case of Oshom 
V. United States (9 C. Cls., 153), that even though de- 
cided upon principles of law which were afterwards in 
other cases held by the Supreme Court to be erro- 
neous, the decision was res judicata between the same 
parties in another suit upon the same questions of 
law; and in the case of Adams v. United States (36 
C. Cls., 104) it was held that— 

A judgment rendered by this court under 
its general jurisdiction, which stands unva- 
cated and unreversed, is a final judgment, 
though founded upon an erroneous ruling of 
law. 

In addition to the decision of this court upon the 
question of the exclusive jurisdiction of the Secretary 
of the Interior, we have the same identical (juestions 



70 

now involved in this suit decided by the United 
States Court at Muskogee and the Circuit Court of 
Appeals at St. Louis. 

Congress refused to confirm the Kern-Clifton roll. 

The Dawes Commission was created by the act of 
March 3, 1893 (27 Stat., 645), for the purpose of 
procuring the extinguishment of the tribal title to 
the lands held by the Five Civilized Tribes within the 
limits of the Indian Territory, and their cession to the 
United States for allotment in severalty among the 
individual members. 

On June 10, 1896, Congress directed the Dawes 
Commission to make a roll of the Five Civilized 
Tribes, and at the same time ratified the tribal rolls 
as they then existed, and provided that from the 
decisions of the Dawes Commission applicants for 
enrollment should have the right of appeal to the 
United States courts of the Indian Territory. The 
act also provided that — 

The said Commission shall also make a roll 
of freeclmen entitled to citizenship in said 
tribes, and shall include their names in the 
lists of members to be filed with the Commis- 
sioner of Indian AiTairs. 

By the act of June 7, 1897 (30 Stat., 83), the 
powers of the Dawes Commission were considerably 
enlarged and the tribal rolls were again • confirmed 
with great particularity. 

Prior to the passage of the act of June 28, 1898, as 
well as after its passage, it was well known that the 
Kern-Clifton roll had not been made " in strict com- 



71 

pliance with the docroo of llic Court of ("laiiiis." 
The Secretary of the Iiiterioi', in his instructions of 
May 14, 1901), to the Diiwes Commission, refers to the 
fact that "it has l)een claimed that said roll contains 
many names not i)rop(M-ly helongin*:; there, ))ut 
whether this fact influenced Congress to disregard 
that roll and direct that a new one he made in strict 
compliance with said decree is immaterial, for the 
fact remains that the decree alone is to be taken as 
a guide for making the roll which your commission 
is to prepare." (Annual Report Interior Depart- 
ment, 1902, pt. 2, p. 125.) 

In a report from the Interior Department dated 

October 2, 1909, filed in this case (ante, p. ), the 

statement is made that the final roll of the Cherokee 
freedmen prepared b>' the commission, or the Com- 
missioner to the Five Civilized Tribes, approved by 
the department under the acts of June 28, 1898, and 
July 1, 1902, supra, shows that there are enrolled 174 
freedmen whose names are also on the Cherokee roll 
of 1880, but who do not appear on the Kern-Clifton 
roll. 

The fact that the Kern-Clifton roll was erroneously 
made is also clearly shown by the action of Congress 
while the bill, \^•hich afterwards became the Curtis 
Act, was under discussion in the Senate after its 
passage by the House. Mr. Pettigrew offered an 
amendment on May 23, 1898, confirming the Kern- 
Clifton roll in express terms, which was defeated on 
June 7, 1898, and the provision sought to be amended 
remained as it had passed the House and as it now 



72 

stands. (Congressional Record, vol. 31, pt. 6, pp. 

5582, 5583.) 

There was considerable debate upon the amend- 
ment at the time it was introduced and at the time 
it was defeated, and it is very apparent that the 
cause of its defeat was its want of accuracy. 

This also is the construction placed by Congress 
upon the meaning to be attached to section 27 of the 
act of July 1, 1902, as well as section 21 of the act of 
June 28, 1898, and was a distinct repudiation of the 
Kern-Clifton roll. 

In addition to this. Congress knew exactly what 
construction had been placed upon both of the above 
acts by the Dawes Commission, because its construc- 
tion was reported to Congress in the annual reports 
of the Secretary of the Interior referred to. Never- 
theless Congress by section 2 of the act of April 26, 
1906 (34 Stat., 137), provided ''that the rolls of the 
tribes affected by this act shall be fully completed on 
or before the fourth day of March, nineteen hundred 
and seven, and the Secretary of the Interior shall have 
no jurisdiction to approve the enrollment of any person 
after said date.^^ 

The persons who are now claiming the right to 
enrollment upon an "injunction of this court" belong 
to that class who did not return within six months 
from the promulgation of the treaty of July 19, 1866, 
and who claim that they were unable to get back. 
This was the same class that the court refused to con- 
sider when on April 15, 1896, it was held that the 



i *> 

Se('i'(M;ir\' ol the Iiitcrioi' had cxclusiNc jurisdiction of 
tli(^ makini; of the K(M-ii-( Tiftoii I'oll, ;iii(l i-ofeiTod the 
proposed instructions of the attoi-iic\- for the fi-ccd- 
men to him, wlio, notwithstandini; the plain hmgiuige 
of tlio decree that only fi-(M>(lin(Mi whose names ap- 
peared on the loll of ISSO. or theii- descendants, should 
be considered, issued tlie instructions of May 14, 1900, 
above referred to, which directed the Dawes Com- 
mission to take up the ri«;ht of citizenship dc novo, 
and as a consequence many of these claimants were 
placed on the final roll of the Cherokee Nation. The 
Buffington case was a protest against this action by 
the commission, and after that case had been dis- 
missed for want of jurisdiction, the attorney for the 
Cherokee Nation came to Washington and had section 
3 of the act of April 26, 1906, supra, passed, in order 
to prevent the Dawes Commission from enrolling any 
more freedmen of the objectionable class. The sec- 
tion provides that — 

The roll of Cherokee freedmen shall include 
only such persons of African descent, either 
free colored or the slaves of Cherokee citizens 
and their descendants, who were actual per- 
sonal bona fide residents of the Cherokee 
Nation August eleventh, eighteen hundred and 
sixty-six, or who actually returned and estab- 
lished such residence in the Cherokee Nation 
on or before Fel)ruary eleventh, eighteen 
hundred and sixt}'-seven. 

While the act of April 26, 1906, supra, was up for 
discussion on January 18, 1906, in the House of Rep- 



74 

resentatives, an amendment to section 3 was offered 
by Mr. Campbell, of Kansas, for the purpose of allow- 
ing the enrollment of freedmen who had not returned 
to the Cherokee Nation within six months from the 
promulgation of the treaty of July 19, 1866, as pro- 
vided by the ninth article thereof, which reads as 
follows : 

Provided, That the roll of Cherokee freed- 
men shall include the names of all such persons 
as are mentioned in article nine of the Cherokee 
treaty of July nineteenth, eighteen hundred 
and sixty-six, who made application for such 
enrollment on or prior to December first, 
nineteen hundred and five, who were taken 
from the nation or driven therefrom under 
circumstances which were beyond their con- 
trol, and who did not, subsequent to August 
eleventh, eighteen hundred and sixty-six [the 
date of the promulgation of the treaty], make 
application for citizenship in any other tribe. 

This amendment was rejected and the bill was 
passed in the identical language of the section quoted 
above. (Congressional Record, vol. 40, pt. 2, pp. 
1240, 1248, 1249.) 

The Cherokee roll was completed and approved by 
the Secretary of the Interior as provided by the act 
of April 26; 1906, swpra, on March 4, 1907. 

Thus it will appear that Congress not only refused 
to accept the Kern-Chfton roll, but placed the mark 
of its disapproval upon the action of the Kern-Clifton 
Commission and the Dawes Commission in enroUing 
freedmen who had not returned within six months 



75 

from \\\o proiniiliiatioii of tlic trciily of July !'.•. 1S()(); 
and in addition to this we would call the attention of 
the court to the fact that the Supreme Court fully 
recoij:iiize(l in the Cherokee Intermarriaije cases (203 
U. S., 92) the fact that Congress had not approved any 
roll of the Clierokee Nation except that of ISSO. The 
court there said: 

The roll of ISSO, made by the Cherokees, was 
a census roll, and its confirmation was not 
intended to create any rights whicii citizens of 
the Cherokee Nation had not before enjoyed, 
but merely to furnish the l)asis for making up 
the roll of citizens. Section 21 was in reality 
a statement that no previous act of Congress 
was intended to confirm any other roll of the 
Cherokee Nation 

The action of the vSeoretary of the Interior in malting up and 
approving the final rolls of the Cherokee Nation is res judicata. 

The acts of Congress delegated authority to the 
Dawes Commission to prepare the final rolls of the 
Five Civilized Tribes, and the provisions of the act 
of June 28, 1898, supra, and the Cherokee agreement 
of 1902, to the effect that the rolls -^thus prepared, 
when approved by the Secretary of the Interior, 
shall constitute a part and parcel of the final roll of 
citizens of the Cherokee tribe upon which allotments 
of land and distribution of other tribal property 
shall be made," created in the Secretary of the 
Interior a tribunal of exclusive jurisdiction, whose 
judgments upon the question of citizenship are res 
judicata. The rule has been well stated by the 



76 

Supreme Court in the case of the United States v. 

California & Oregon Land Company (148 U. S., 31), 

as follows: 

Now, it is familiar law that when jurisdiction 
is delegated to any officer or tribunal, his or 
its determination is conclusive. Thus in the 
case of United States v. Arredondo (31 U. S., 6 
Pet., 691, 729; 8 L. ed., 547), this court said: 
*' It is an universal principle that, where a 
power or jurisdiction is delegated to any public 
officer or tribunal over a subject-matter, and 
its exercise is confided to his or their discretion, 
the acts so done are binding and valid as to the 
subject-matter; and individual rights will not 
be disturbed collaterally for anything done in 
the exercise of that discretion within the au- 
thority and power conferred. The only ques- 
tions which can arise between an individual 
claiming a right under the acts done and the 
public, or any person denying its validity, are, 
power in the officer and fraud in the party. 
All other questions are settled by the decision 
made or the act done by the tribunal or officer, 
whether executive, legislative, judicial, or spe- 
cial, unless an appeal is provided for or other 
provision, by some appellate or supervisory 
tribunal, is prescribed by law." 

The judgment of a special tribunal is final 
and conclusive ivhen no provision is made for 
appeal to any other jurisdiction. (Land tribu- 
nal.) {Foley V. Harrison, 15 How., 433, 446; 
14 L. ed., 761.) 
It will be observed by the court that there is no 

right of appeal granted from the action of the Secre- 



77 

tary ol llu> liiliTioi- in citizi'iislii}) cases, and as llic 
Supreme Court said in Ihirvvij v. Tyler (2 Wall., 
328-342) : 

\\ here special j)()\veis conteiTed on a court 
of general jurisdiction are to be exeiciscd in 
usual form of conunon law and chancery pro- 
ceedings the presumptions as to conclusion of 
judgment are the same as attach to cases 
within its general power. 

And as the Supreme Court said in liie case of 
Lumber Company v. Butchel (101 U. S., 638, 639): 

Judgment based on referee's finding is con- 
clusive as to the facts found in subsecjuent 
controversies between same parties on same 
contract. 

In the case of Steele v. Smelting Company (106 
U. S., 447-451) the Supreme Court reviewed a large 
number of authorities and reached the conclusion 
that " the decision of a competent special tribunal is 
conclusive." 

In the case of Adams Express Company v. Ohio State 
Auditor (165 U. S., 194, 229) the same court said: 

Findings of fact by a special tribunal can 
not be overturned except by evidence estab- 
lishing fraud. 

The Supreme Court in the case of Keim \. The 
United States (33 C. Cls., 174; affirmed l)y the Su- 
preme Court, 177 U. S., 290) said: 

The Court of Claims will not review the 
decision of the head of one of the executive 
departments in matters committed to his 
discretion. 



78 

And this court in the case of Plwnmer v. The 
United States (24 C. Cls., 517) said: 

Where a statute intrusts a public officer 
with a designated duty the exercise of his dis- 
cretion in performing that duty can not be 
reviewed if he acts within the general scope 
of his authority under the statute. 

And it may be said in passing that there is no 
question in this case that the Secretary exceeded his 
authority in his disallowance of this claim. 

This court also said in the case of Day v. The 
United States (21 C. Cls., 262): 

The doctrine of res judicata applies to the 
decisions of the executive departments. 

If this be true as to matters committed generally to 
the discretion of the executive departments, it should 
be proportionately of greater force as to matters spe- 
cifically committed by act of Congress. 

The constitutionality of the act of June 28, 1898, 
was considered at great length and sustained by the 
Supreme Court in the case of Stephens v. The Cherokee 
Nation (174 U. S., 445), and the question of citizen- 
ship was also extensively reviewed, as well as the 
power of Congress to reopen the consideration of citi- 
zenship cases. 

In the case of Wallace v. Adams (204 U. S., 415) the 
Supreme Court held that Congress had full power over 
the question of citizenship in Indian tribes, and that 
'4t may adopt any reasonable method to ascertain 
who are citizens, and if one method is unsatisfactory- 
it can try another ; nor is its power exhausted because 



79 

tlic lirst plan is by iiKjuiiy in a territorial court. 
The functions of a territorial couit in sucli a case are 
those of a coiiuiiission latlier than a couiM." 'I'he 
court also lu>l(l that the investiijat ion of the (jucstion 
of citizenship is n(>c(>ssarily judicial in its charaeter. 

In the ease of Wed v. Hitchcock (205 U. S., SO) it 
was lield that "in the absence of any indication in the 
act to allow an a[)peal to the courts for applicants 
who are dissatisfied, mandamus will not issue to re- 
quire the Secretary to approve the selection of one 
elaiminji; to be an adopted member of the tribe but 
whose application the Secretary has denied." The 
court also held that " where the Secretary of the Inte- 
rior has authority to pass on the right of one claiming 
to be a member of a l)and of Indians to select land 
under an agreement ratified by an act of Congress, his 
jurisdiction does not depend upon his decision ])eing 
right." 

The petitioner's prayer for relief. 

Congress provided that the final rolls of the 
Cherokee Nation should l^e made up of those living 
on March 4, 1906, and further provided that the 
rolls should be finally closed on March 4, 1907, after 
which the Secretary of the Interior should have no 
authority to place any new names on the roll. On 
April 20, 1908, over one year after the final rolls had 
been completed and approved by the Secretary- of 
the Interior, an order was passed by this court 
allowing the appointment of a substitute trustee 
and the filing of claimant's supplemental petition. 

14296—09 G 



80 

The petition contains the following remarkable 
prayer for relief, which for the convenience of the 
court we will divide into sections: 

1. The premises considered, yom" petitioner 
prays that this honorable court will pass a 
decree declaring the action of the said Dawes 
Commission and the Secretary of the Interior 
whereby the names of said freedmen were 
excluded from the roll and citizenship of the 
Cherokee Nation be declared to be unlawful. 

2. Further enjoining and prohibiting the 
defendants, the Cherokee Nation, and the 
United States, as trustee for the Cherokee 
Nation, from making any discrimination be- 
tween the said freedmen and other citizens of 
the Cherokee Nation in the allotment of lands 
and distribution of the said property and assets 
of said nation. 

3. Further enjoining the said defendant, and 
particularly the United States acting through 
the Secretary of the Interior, from further dis- 
turbing said freedmen in the possession and 
occupation of their said homes and improve- 
ments. 

4. Further enjoining upon the said defend- 
ant, the United States acting through the Sec- 
retary of the Interior, to reinstate such of said 
freedmen as have heretofore been ousted from 
the occupancy and possession of their said 
homes and improvements. 

We have already called the attention of the court 
to the fact that the final roll of the Cherokee Nation 
had been completed and approved, and nothing more 
was necessary to be done, for over a year before the 



81 

petition was allowed to he filed in this ease. It is 
very rarely, indeed, that (he writ of injunction is used 
for the enforcement of allirniative action; its ordi- 
nary function is to restrain the threatened action of 
some ollicer of (he ( io\'ernment, or prixate company, 
or individual. 

In Ex parte Joins (191 U. S., 93-102), the court 
refused to issue the writ of prohibition aj^ainst the 
Citizenship Court of the Choctaw Nation, a special 
tribunal, upon the ground that the case had already 
been decided. The court said: 

This being so, there is nothing which this 
court could prohibit, even if it were of opinion 
that the petitioner made out a good case on 
the merits, which we do not intimate. There- 
fore the writ must be denied. 

The case of Fleming et al. v. McCurtain et al. (215 

U. S., ), involving the same questions as the 

Joins case, came up on direct appeal to the Supreme 
Court and was decided on November 8, 1909, upon 
its merits. In that case the court was asked to reopen 
the Choctaw rolls upon the ground that the citizen- 
ship court had been bribed by the attorneys for the 
Choctaw Nation. The Supreme Court, however, 
went to the very root of the matter and held that 
under the patent to the Choctaw Nation the indi- 
vidual members of the tribe acquired no such vested 
interest in the tribal lands as would entitle them to 
maintain an action to reopen the rolls which had been 
finally approved l)y the Secretary of the Interior. 
A comparison of the language used in the Choctaw 



82 

and Cherokee patents discloses a title much nearer 
to a fee simple in the Choctaw Nation than in the 
Cherokee Nation. So that the rule laid down by 
the Supreme Court as applicable to the Choctaw rolls 
is much stronger when applied to the Cherokee rolls. 

The case of Pam-To-Pee v. The United States (187 
U. S., 371), greatly relied upon by the petitioners, is in 
reality strongly against their contention in this case. 
In that case the rolls had been closed and the judg- 
ment distributed, just as in this case. It afterwards 
appeared that there was a class of Indians who had 
been left out, but who were entitled to participate in 
the judgment. The court held that ''where the cir- 
cumstances are as in the case at bar any further relief 
must be obtained from Congress and can not be 
given by the courts." 

In the case of Garfield v. Goldshy (211 U. S., 249), 
cited in the Fleming case, supra, the Supreme Court 
held that ''after the Secretary of the Interior has 
approved a list containing the name of a person 
found by the Dawes Commission to be entitled to 
enrollment for distribution, he can not, without giving 
that person notice and opportunity to be heard, strike 
his name from the list. It would not be due process 
of law." 

CONCLUSION. 

The judgment of the court in this case rests upon 
two propositions, one of fact and one of law, both 
of which we have shown to be absolutely erroneous: 
First, that the Kern-Clifton roll had been confirmed 
by Congress; second, that the duties of the Dawes 



S3 

Commission in making- up the liiial roll of the Cherokee 
Nation were merely ministerial. 

We ha\e shown, on the contrary, that the Kern- 
C'lil'ton roll was repudiated and discredited l)y Con- 
gress and the Interior Department, and that the 
duties of the Secretary of the Interior in approving 
the Kern-Clifton roll, as well as the final roll of the 
Cherokee Nation prepared by the Dawes Commis- 
sion, were judicial in their character and not subject 
to review by courts of law. 

We therefore respectfully ask the court to refuse 
to reopen the decree of February 3, 1896, and to dis- 
miss the supplemental petition in this case. 

Geo. M. Anderson, 
Attorney for the United States. 



84 



APPENDIX A. 

DECREE OF FEBRUARY 3, 1896. 

Court of Claims. 

Moses Whitmire, trustee for the 
Freedmen of the Cherokee Nation, 

V. 

The Cherokee Nation and the 
United States. 



No. 17209. 



It appearing that since the entry of the decree filed 
May 8, 1895, the defendant, the Cherokee Nation, 
has filed motions for a rehearing and new trial and 
an application for an appeal from said decree to the 
Supreme Court, which motions have not been heard 
and which application for an appeal has not yet been 
allowed; and it appearing that both parties are de- 
sirous of avoiding further litigation and have agreed 
that if the court shall see fit to modify said decree, it 
will be accepted as final. 

Now, on motion by the attorney for the complain- 
ant, the defendant consenting thereto, it is ordered 
that the said decree be vacated and set aside and 
that the following decree be entered as to the final 
decree in this case. 

Court of Claims. 
Moses Whitmire, trustee for the ^ 
Freedmen of the Cherokee Nation, 

V. 

The Cherokee Nation and the 

United States. j 

At a sitting of the Court of Claims in the city of 
Washington, this 3d day of February, 1896. 



^No. 17209. 



Til is (•niisc comiiii!; on to he IicmicI upon the ;ini('ii(.l('d 
jHMilioii, ;iiis\V(M\ agreed facts, proofs, and ai",<j;uni('nts 
submitted by the parties respectively, and the court 
having; heard the same and considered the just rip;hts 
in hiw and ecpiity of tlie freedmen of the Cherokee 
Nation, inchiding; all ])ersons who had been lii)erat^d 
by voluntary act of theii' owners, or by law, and all 
free colored persons who resided in the Cherokee 
country at the conunencement of tlu^ rebellion and 
resided therein July 19, 1866, or returned thereto 
within six months thereafter, and their descendants 
who are settled and incorporated into the Cherokee 
Nation, in pursuance of the authority vested in the 
court by act of Congress entitled ''An act to refer 
to the Court of Claims certain claims of the Shawneee 
and Delaware Indians and the freedmen of the 
Cherokee Nation, and for other purposes," approved 
October 1, 1890. 

And it appearing to the court that undei- the })ro- 
visions of article 9 of the treaty of July 19, 1866, 
made by and between the Cherokee Nation and the 
United States, the said freedmen, who had been liber- 
ated by voluntary act of their foi'mer owners or by 
law, and all free colored persons who resided in the 
Cherokee country at the commencement of the rebel- 
lion and were residents therein at the date of said 
treaty, or who had returned thereto within six months 
of said last-mentioned date, and their descendants, 
were admitted into and became a part of the Cherokee 
Nation and entitled to equal rights and immunities, 
and to participate in the Cherokee national funds and 
common property in the same manner and to the same 
extent as Cherokee citizens of Cherokee blood. 

It further appearing to the court that under and by 
virtue of an act entitled " An act making appropria- 



86 

tions for current and contingent expenses, and for ful- 
filling treaty stipulations with Indian tribes, for the 
fiscal year ending June 30, 1894, ' ' approved March 3, 
1893, it was provided for the payment to the Cherokee 
Nation of the sum of $8,595,736, the same to be in 
full consideration of all the right, title, interest, and 
claim which said nation might have in the lands lying 
west of 96 degrees west longitude, commonly known 
as the Cherokee Outlet, and it further appearing that 
of the said sum of $8,595,736 the sum of $295,736 
was appropriated by said act out of the Treasury of 
the United States and made immediately available, 
and that the balance thereof, to wit, $8,300,000, was 
made payable in five annual installments, the first to 
be payable on the 4th of March, 1895, and all deferred 
payments to bear interest at the rate of 4 per cent per 
annum; and that a sufficient amount of the money 
provided in said act should be paid for the purchase 
of said Cherokee Outlet to pay the Delawares and 
Shawnees their pro rata share of said outlet and which 
should remain in the Treasury of the United States 
until the status of said Delaware and Shawnee Indians 
should be determined by the courts of the United 
States before which their suits were then pending; 
also a sufficient amount to pay the freedmen who are 
Cherokee citizens, as the same shall be determined by 
the courts; and the said act further providing that if 
the legislative council of the Cherokee Nation should 
deem it more advantageous to their people they 
might issue a loan for the principal and interest of the 
deferred payments, pledging said amounts of interest 
and principal to secure payment of such debt ; and it 
appearing to the court that said Cherokee Nation has 
borrowed from the Union Trust Company of New 
York the sum of $6,640,000 and pledged as security 



S7 

theret'or tlic toui- paynuMits as alurcsaid, lallin<i; duo 
after the 4th day of Marcli, 1S95, and thai the pay- 
ment lallina (hi(> on ihc snid l(h ol Mai'ch, 1.S95, 
amount ini;- to .fl, ()()(),()()(), lias been retained in the 
Treasury of the United States from which to pay the 
Dehiwares. Sliawnees, and freedmen, as hereinbefore 
set fortli; and it fuithei- appearinjz; to the court that 
the said $(),()4(),()()(), so l)orrowed by tlie Clierokee 
Nation, lias l)een distril)uted to the Cherokee citizens 
of Cherokee blood, to the exclusion of the complain- 
ants, the aforesaid freedmen and free colored persons 
and their descendants, as well as the two funds of 
$300,000 each distributed l)y the act of the Cherokee 
council of date April 26, 1886, and November 25, 
1890, as charged in the amended petition in this case. 
It is ordered, adjudged, and decreed that so much 
of the acts of the Cherokee national council of date 
April 26, 1886, November 25, 1890, and May 3, 1894, 
as restricts the distribution of funds which were de- 
rived from the public domain and from the sale of 
lands by the Cherokee Nation to the Government of 
the United States, to citizens of the nation by blood, 
be held and decreed void and contrary to and in 
derogation of the constitution of the Cherokee Na- 
tion and the provisions and stipulations of article 9 
of the aforesaid treaty of July 19, 1866, with respect 
to the rights of said freedmen, who have been liber- 
ated by voluntary act of their former owners or by 
law, and all free colored persons who resided in the 
Cherokee country at the commencement of the rebel- 
lion and who on the said date resided therein, or who 
returned thereto within six months thereaftei-, and 
their descendants; and that the said Cherokee Na- 
tion or its trustees, the United States, account for, 
render, and pay to the aforesaid freedmen and free 



88 

colored persons and their descendants, out of any 
funds of the said nation in its national treasury, or 
in the custody of the United States as trustee, or held 
by agreement between said nation and the United 
States for the purpose of satisfying the decree herein 
rendered, not specifically appropriated by law to 
other purposes, or out of funds which may hereafter 
come to the possession of said trustee belonging to 
the Cherokee Nation, a sum equal to the aggregate 
amount which said freedmen and free colored per- 
sons and their descendants would have received if 
the before-mentioned void and unconstitutional re- 
strictions in said statutes had not existed. 

And it is further adjudged and decreed that the 
complainants in this suit and those whom they rep- 
resent, being the freedmen and free colored persons 
aforesaid and their descendants living and in being 
on the 3d day of May, 1894, are entitled to participate 
hereafter in the common property of the Cherokee 
Nation in the same manner and to the same extent as 
Cherokee citizens of Cherokee blood or parentage 
may be entitled, and that in the distribution of the 
proceeds and avails of the public domain or common 
property of the nation among the citizens thereof by 
distribution per capita at any time hereafter, the 
defendant, the Cherokee Nation, and the defendant, 
the United States, as trustee of the Cherokee Nation, 
be enjoined and prohibited from making any discrimi- 
nation between the Cherokee citizens of Cherokee 
blood or parentage and Cherokee citizens who are or 
were freedmen who had been liberated by voluntary 
act of their former owners or by law, as well as all 
free colored persons who were in the Cherokee coun- 
try at the commencement of the rebellion, and were 
residents therein at the date of said treaty, or who 



89 

n'tunied (Ium-cIo within six moiiths thoroattcr aiul 
thrir (irscoiulants. lo \hv prejudice of the lattei-. 

I( IxMHii; uiidorstood that tlie IV(M'(hn('n and their 
descendants and free colored persons above referred 
to shall include only such persons of said class 'is have 
not forfeited or abjured their citizenship of said Clier- 
okee Nation at the date of the enterinjj; of this decree. 

And it is further adjudged and decreed with respect 
to the participation of said freedmen and free colored 
persons aforesaid and their descendants in tlie thi-ee 
funds referred to in the three statutes of the Cherokee 
Nation hereinbefore declared to be void and uncon- 
stitutional, that the Cherokees by blood having 
received a sum which amounts at the date hereof to 
$7,240,000, in which the said freedmen and fi-ee colored 
persons aforesaid and their descendants were entitled 
to have and participate in the distribution of said 
sum; and for the purpose of fixing an amount 
thereof which ought to be distributed among said 
freedmen and free colored persons and their descend- 
ants, it is further adjudged and decreed that said 
freedmen and free colored persons and their descend- 
ants are entitled to have and receive the sum of 
$903,365 out of the sum last aforesaid, after deduct- 
ing the amounts hereinafter allowed and decreed to 
be paid to the trustee herein as his compensation for 
services as trustee and the attorney of record of 
the complainant herein, and the other expenses 
incident to the ascertainment and payment of the 
complainants, the freedmen, as hereinafter provided, 
such balance remaining to be paid by the Secretary 
of the Interior to the freedmen and free colored per- 
sons aforesaid and their 'descendants, per capita, 
who would have been entitled to receive the same if 
the unconstitutional restrictions and discriminations 



90 

in said statutes had not existed. Such payments to 
be made upon a roll of said freedmen and free colored 
persons and their descendants as prepared and 
approved by the Secretary of the Interior in accord- 
ance with provisions hereinafter set forth in this 
decree. 

And it is further ordered and adjudged that for the 
purpose of ascertaining and determining who are the 
individual freedmen of the Cherokee Nation now en- 
titled to share in the distribution of the said sum of 
$903,365, the Secretary of the Interior be authorized 
to appoint three commissioners, one on the nomina- 
tion of the complainant and one on the nomination 
of the defendant, the Cherokee Nation, but both 
nominations to be approved by him, to proceed to 
the Cherokee country and hear the testimony both 
for and against the identity of all freedmen, free 
colored persons and their descendants, claiming to 
be entitled to share in the distribution of said 
$903,365, that may be offered by the respective par- 
ties to this suit ; and that each of said parties shall be 
entitled to be represented before said commissioners, 
either at the taking of testimony in the Cherokee 
country or elsewhere; and that the said commis- 
sioners in ascertaining the identity of the freedmen 
entitled to share under this decree shall accept what 
is known as the authenticated Cherokee roll, the 
same now being on file in the office of the Secretary 
of the Interior, having been furnished to him and 
purporting to have been taken by the Cherokee Na- 
tion in 1880, for the purpose of showing the number 
of freedmen then entitled to citizenship in the said 
nation under the terms of the treaty between the 
United States and the Cherokee Nation, hereinbefore 
referred to, and their descendants ; and the said com- 



missionei's shall ascertain who ol" said persons named 
on said roll were alive and what descendants of said 
persons were alixc on May 'A, \S\)\, and no evidence 
shall be accepted by said conmiission tendin<i to dis- 
prove the citizenship of any of tin* persons whose 
names appear upon said roll. 

And it is further ordered and directed that when the 
foreo;oing roll so reported by the said commissioners 
shall be approved l)V the Secretary of the Interior he 
will cause the amount remainin^j; of the fund of 
$903,365, after deducting the costs and expenses 
herein directed to be paid by the complainants, to be 
paid and distributed to the persons entitled thereto, 
such payments, however, not to exceed $25(5.34 per 
capita, and the cost of such distril)ution and payment 
likewise being a charge upon the fund of the complain- 
ants so to be distributed pursuant to the act of 
March 2, 1895, section 11. 

And it is further directed that the amount of $(),500, 
or so much thereof as may be necessary, is hereby 
allowed for the compensation of the said commission- 
ers and the necessary costs and expenses incidental 
to the ascertainment of the individual complainants 
by them as hereinbefore provided; and it is hereby 
adjudged that one-half of such compensation and 
expenses shall be paid by the complainants and de- 
ducted from the recovery in this suit, and that the 
remaining one-half part of such compensation and 
expenses shall l)e paid by the defendant, the Cherokee 
Nation, in addition to the costs hereinafter adjudged 
against the said defendant. And the Secretary of 
the Interior is authorized to fix the compensation of 
said commissioners and to advance for the necessary 
and immediate expenses of making the rolls as here- 
inbefore provided such amount as he may deem 
advisable. 



92 

There is further adjudged and decreed to Robert 
H. Kern, the attorney of record for complainant, for 
compensation and counsel fees, including the compen- 
sation of all associate counsel and the expenses and 
disbursements incident to the litigation, 2 per cent of 
the amount of the recovery, to wit, $18,067.30, which 
amount it is adjudged shall be paid by the Secretary 
of the Treasury of the United States to the said Robert 
H. Kern out of the funds hereinbefore mentioned, 
now in his hands, and that the same when so paid 
shall be charged to the defendant, the Cherokee 
Nation. 

And there is further decreed and adjudged to the 
said Robert H. Kern, attorney of record of the com- 
plainants, for compensation and counsel fees, includ- 
ing the compensation of all associate counsel and the 
expenses and disbursements incident to the litigation, 
4 per cent upon the amount of the recovery, to wit, 
$36,134, which amount it is adjudged shall be paid by 
the Secretary of the Treasury of the United States out 
of the funds hereinbefore mentioned, now in his 
hands, and shall be a charge against the freedmen of 
the Cherokee Nation and paid out of the funds here- 
inbefore awarded to them. 

It is further adjudged and decreed that Moses 
Whitmire, as trustee of the coniplainants, be allowed 
for compensation for his services as such, including 
expenses and disbursements made by him, the sum 
of $5,000, which amount it is adjudged shall be paid 
to said trustee by the Secretary of the Treasury of 
the United States out of the funds hereinbefore men- 
tioned, now in his hands, and shall be a charge against 
the freedmen of the Cherokee Nation and paid out of 
the funds hereinbefore awarded to them. 



03 

Ami the coinplainaiit lia\iiin i-cprosoiitcd tliat the 
miiiiher of the tVeeHlineii entitled to distrihutioii is not 
less tlian :^J)'2\, it is further ordered that if said num- 
ber of persons entitled to distribution shall not eqmd 
that number the payments made shall not exeeed 
$25().34 per eapita, and that any balanee of the 
amount hereby decreed to said plaintiffs, and not 
consumed in the per capita payment herein provided 
for, shall l)e paid over to the Cherokee Nation as 
other moneys provided for in the agreement between 
said nation and the Secretary of the Interior here- 
inbefore referred to. 

It is further adjudged that the Secretary of the 
Interior pay the aforesaid amount decreed to be piud 
by him out of the aforesaid funds now in the Treasury 
Department of the United States. 

And it is further ordered, adjudged, and decreed 
that the defendant, the Cherokee Nation, pay the 
costs of this suit, as above provided, and that if this 
judgment and decree be not carried out and satisfied 
within six months from the date hereof the claimant 
may apply to this court for such further order, relief, 
or remedy as the plaintiff" herein may deem necessary, 
and that if any further proceeding l)e had under this 
decree, the rights of the attorneys and counsel for the 
plaintiff herein to further costs and allowances be 
reserved to be hereafter determined and fixed by 
•the court, and the court reserves the right to make all 
such further orders in aid hereof as to it may seem 
meet. 

It is hereby stipulated and agreed on the part of 
the complainant and on the part of the defendant, 
the Cherokee Nation, that the foregoing decree be 
entered in tliis case in the place and stead of the 
decree entered and filed May 8, 1895, in this case, and 



94 

that it be entered nunc pro tunc as of that date, to wit, 
May 8, 1895, and that the apphcation for an appeal 
filed by the complainant and the apphcation for an 
appeal and motions for a rehearing and for a new 
trial filed by the said defendant be mutually with- 
drawn upon the entry of this corrected decree. 
Dated Washington, February 3, 1896. 

Robert H. Kern, 
Attorney for the Complainant. 
e. c. boudinot, 
Maxwell & Chase, 
Attorneys for the Cherokee Nation. 
S. H. Mayes, 
Principal Chief of the Cherokee Nation. 

The defendants, the United States, offer no objec- 
tion to the entry of the amended decree as provided 
in this stipulation. 

> 
Assistant Attorney-General. 



95 



APPENDIX B. 

PROPOSKI) INSTRUCTIONS TO COMMISSION A PPOINTEDUn'dER 
DECRKK OF FEBRUARY 3, 1890, RV THE SECRETARY OF THE 
INTERIOR, SUBMITTED BY ("OUNSEE TO THE COURT AND 
ORDER OF COURT THEREON. (RE( EIV ED IN REPORT FROM 
INTERIOR DEPARTMENT NOVEMBER 21, 1907.) 

The court tloth adjudf^^e and decree that the com- 
mission provided for in its decree entered of record in 
the Court of CUxims on February 3, 1896, in the case 
of Moses Whitmire, trustee, etc., v. Cherokee Nation 
et al., being case No. 17209, shall be governed l^y 
the following rules and directions in the discharge of 
the duties prescribed for it in said decree, to wit: 

First. Said commission before commencing its 
duties shall qualify by each member thereof taking 
an oath before any United States commissioner that 
he will faithfully perform the duties of his said ofhce. 

Second. It shall have the same power to administer 
oaths to witnesses, to compel the attendance of the 
same, to compel the production of written testimony, 
and to determine the admissibility of all evidence 
offered as the Court of Claims would have in making 
the investigation prescribed for said commission. 

Third. It shall, as soon as practicable, proceed to 
the Cherokee Nation to hear such evidence as may be 
offered pro and con as to the identity of the freedmen 
entitled to share in the money mentioned in the de- 
cree; but before beginning its labors it shall give no- 
tice there by at least two weekly insertions in the two 
most widely circulated papers in the nation as to 
the times and places they will hear evidence on behalf 

14296—09 7 



96 

of the parties to this suit. And it shall, as far as prac- 
ticable, appoint such places for the hearing of such 
testimony as shall be most convenient to the parties 
to this suit; and it shall also hear testimony at any 
place other than the Cherokee Nation that in its judg- 
ment may be necessary. 

Fourth. It shall make no other inquiry as to the 
authenticated Cherokee roll mentioned in the decree 
than to ascertain who of the persons mentioned on 
said roll and their descendants were alive on May 3, 
1894, and who were at said date citizens of the 
Cherokee Nation. 

Fifth. In making the investigation prescribed in 
said decree it shall confine itself to the identity of 
the following classes of persons only: (1) All persons 
who had been held in bondage by any member of 
the Cherokee Nation and who had been liberated 
by act of law or by voluntary act of their owners 
and the descendants of such; (2) all free colored per- 
sons who were in the Indian Territory at the com- 
mencement of the rebellion and were residents 
thereof at the time of the treaty of July 9, 1866, or 
who returned thereto within six months after the 
conclusion and ratification of said treaty, and their 
descendants; (3) all of the aforesaid classes who were 
citizens of the Cherokee Nation on May 3, 1894. 

Sixth. The commission is hereby authorized to 
employ a competent clerk. 

Seventh. In determining the identity of the per- 
sons aforesaid a vote of a majority of said commis- 
sion shall establish the identity of the person pro- 
vided for in said decree, and when the commission 
shall have finished its labors it shall report to the 
Secretary of the Interior the names of the persons 
determined by it as being entitled to share in the 



97 

proceeds mentioned in I ho jiforesiiid decree, with 
evidence ;is to idcMitity of tree<linen \vh(M-e conimis- 
sion is not unaiiinions. 

Eighth. The said commission shall conclude its 
labors within four months from the time it qualifies 
as aforesaid. 

(Indorsement:) Respectfully referred to the Sec- 
retary of the Interior. The instructions to be ^iven 
to the commissioners must be determined by him. 
The within, proposed by counsel, seem unobjection- 
able to the court, except the second. But with the 
approval of the Secretary the court will appoint the 
commissioners selected by him commissioners of 
this court to take testimony, which will authorize 
them to administer oaths. 

William A. Richardson. 
February 15, 1896. 



98 



Moses Whitmire, trustee, 

V. 

The Cherokee Nation. 



APPENDIX C. 

February 18, 1896. 



Hon. Daniel M. Browning, 

Commissioner of Indian Affairs. 

Sir: The court is informed that the Commissioner 
of Indian, Affairs desires its opinion in regard to the 
fifth of the proposed instructions referred for the 
consideration of the Secretary of the Interior Feb- 
ruary 15, 1896. 

The decree in this case follows and refers to Article 
IX of the treaty with the Cherokee Nation, July 19, 
1866, and the persons therein designated are the 
complainants in this case entitled to payment under 
tlie decree. 

The court is of the opinion that the clauses in that 
article in these words, ^^and are now residents therein, 
or who may return within six months, and their descend- 
ants,''^ were intended, for the protection of the Chero- 
kee Nation, as a limitation upon the number of per- 
sons who might avail themselves of the provisions 
of the treaty; and consequently that they refer to 
both the freedmen and the free colored persons pre- 
viously named in the article; that is to say, freed- 
men and the descendants of freedmen who did not 
return within six months are excluded from the 
benefits of the treaty and of the decree. 



00 

The court is also of tho opinion thai this period of 
six months extends from the date of ihe pmninUja' 
(ion ()f (he hrdli/, Au,i!;ust II, ISOO, and consecjuently 
did not expire until IVhruai-}- II, ISO?. 

W'lM.lAM A. IvK IIARDSOX, 

Chief .1 list ire. 
(31 C. Cls., 147, 148.) 



100 



APPENDIX D. 

instructions by the secretary of the interior to 
commission appointed by him under the decree of 
february 3, 1896. (report from interior department 
of november 21, 1907.) 

Department of the Interior, 

Office of Indian Affairs, 
Washington, February 20, 1896. 
William Clifton, Robert H. Kern, William B. 

Thompson, Commissioners. 

Gentlemen : By the terms of a decree of the Court 
of Claims filed February 3, 1896, by the said court as 
the final decree in case 17209, entitled Moses Whit- 
mire, trustee for the Freedmen oj the Cherokee Nation^ 
V. The Cherokee Nation and the United States, for cer- 
tain claims of the Shawnee and Delaware Indians and 
the Freedmen of the Cherokee Nation, etc., it was or- 
dered and adjudged that for the purpose of ascer- 
taining and determining who are the individual freed- 
men of the Cherokee Nation now entitled to share in 
the distribution of the sum of $903,365 awarded them, 
the Secretary of the Interior was authorized to ap- 
point three commissioners — one on the nomination of 
the complainant and one on the nomination of the 
defendant, the Cherokee Nation — to proceed to the 
Cherokee country and hear the testimony both for 
and against the identity of all the freedmen, free col- 
ored persons, and their descendants, claiming to be 
entitled to share in the distribution of said $903,365 
that may be offered by the respective parties to said 
suit. 



101 

Pursuant to the ai'orcsaid (Iccrcc and in corn- 
plianco vvitli {\\v diroctions contaiiKHl in Icttci- of the 
h()noral)le Secrotan' of the Intcrioi* under date of 
Fel)niarv, 1S96, you are infornuMl that you have 
been appointed the nieiuhers of said coniinission, to 
proceed to the Cherokee country and hear the testi- 
mony l)oth for and a*j;ainst the identity of all freed- 
men. free colored persons, and their descendants, 
claiming: to be entitled to share in the distribution 
aforesaid, that may be offered l)y the respective 
parties to said suit. 

By the ninth article of the Cherokee treaty of July 
19, 1866 (14 Stats., p. 801), the Cherokees agreed— 

that all freedmen who have been liberated by 
voluntary act of their former owners or by 
law, as well as all free colored persons who 
were in the country at the commencement of 
the rel)ellion and are now residents therein, 
or who may return within six months, and 
their descendants, shall have all the ria:hts of 
native C'lierokees: * * * 

and it appearing to the court that under the pro- 
visions of said article 9 the aforesaid freedmen and 
free colored persons were admitted into and became 
a part of the Cherokee Nation and entitled to efjual 
rights and immunities and to participate in the 
Cherokee national funds and common property in the 
same manner and to the same extent as Cherokee 
citizens of Cherokee blood, it w^as adjudged and de- 
creed that the complainants in said suit and those 
whom they represented, being the freedmen and free 
colored persons aforesaid and their descendants living 
and in being on the 3d day of May, 1894, are entitled 
to participate hereafter in the common property of 
the Cherokee Nation, it l)eing understood tlint the 



102 

freedmen and their descendants and free colored per- 
sons above referred to should include only such per- 
sons of said class as had not forfeited or abjured their 
citizenship of said Cherokee Nation at the date of the 
entering of said decree. 

The commission before entering upon its duties 
under their appointment must qualify by each 
member thereof taking an oath before any United 
States commissioner, or otherwise, that he will faith- 
fully perform the duties of his said office. 

The commission will be governed by the following 
rules and directions in the discharge of the duties pre- 
scribed for it in said decree : 

That you may have the same power to administer 
oaths to witnesses, to compel the attendance of the 
same, to compel the production of written testimony, 
and to determine the admissibility of all evidence 
offered as the Court of Claims would have in making 
the investigation prescribed for said commission. 
You will also be appointed commissioners of the 
Court of Claims to take said testimony and to 
administer oaths. 

You will, as soon as practicable, fix upon a day 
when the commission will meet in Washington to 
receive such verbal instructions as may be desired, to 
formulate blanks containing such items of evidence 
as may be decreed essential in arriving at all the facts 
necessary to be established to facilitate the estabhsh- 
ment of the identity of the claimant entitled to par- 
ticipate in the said distribution, and to prepare a form 
of schedule that shall present such facts as may be 
held to be necessary to a ready and prompt under- 
standing of each individual case, that will aid the 
Secretary of the Interior in reaching a conclusion as 
to his approval thereof and in identifying the persons 



t'lirollecl tluMvoii wlu-n ilishursini;- said inoiicN'. as j)i-o- 
vided by said docroo, and in the proparation ol tonus, 
handl)ills, cii'culais, (>t('., to he sen! out to ciainiants. 

You will at once <2;iv(' due })ul)li(' notice l)y advor- 
tisonient in two of the most witlely circulated papers 
in the nation, by at least two weekly insertions, and 
by such oth(M- methods as you may deem most 
effectual in reaching; said claimants, such as hand- 
bills or circulars, of the times and ])laces where the 
commission will hear oxidencc on Ix'half of the 
parties to the suit either in the Cherokee Nation or 
any other place that in your jud<!;ment may be 
necessary, most convenient to said freedmen and 
free colored persons. 

I would suggest that in ascertaining and deter- 
mining what freedmen are entitled "to a distributive 
share of said fund the following questions be sub- 
mitted to each claimant, so far as the same may be 
applical)le to that particular case, viz: 

1. When and where were >'ou born? 

2. Who were your parents? 

3. Were you a slave in February, 1863? 

4. If you were, what was your owner's name, 
and was your owner a Cherokee Indian? 

5. If not a slave, but the descendant of a slave, 
state who were your father and mother and the 
names of their respective owners, and whether such 
owner was a Cherokee Indian. 

6. Did you reside in the Cherokee Nation at the 
time of the treaty (July 19, 1866)? 

7. If not, where did you live and when did you 
return to the Cherokee Nation to reside? 

8. Have you lived there continuously ever since? 

9. If not, state when >'ou left the nation, how 
often and how long you remained away eacli time. 



104 

with the reasons each time for leaving and remaining 
away. 

10. In cases of married women, give your maiden 
name; and if married more than once, each of. your 
married names. 

11. Where do you now reside — give post-office 
address *? 

12. How long have you lived there consecutively? 
In ascertaining the identity of the freedmen and 

free colored persons entitled to share under this de- 
cree, you are directed by the decree to accept what 
is known as the authenticated Cherokee roll, pur- 
porting to have been taken by the Cherokee Nation 
in 1880, and make no inquiry respecting it other than 
to ascertain who of said persons named on said roll 
were alive and what descendants of said persons 
were alive on May 3, 1894, and no evidence must be 
accepted by you tending to disprove the citizenship 
of any of the persons whose names appear on said 
roll. The ''authenticated Cherokee roll" referred to 
in the decree is alleged to be on file in the office of 
the Secretary of the Interior, but no such roll is on 
file in that office, and the only copy known to be on 
file that could be taken for said ''authenticated 
Cherokee roll" is a certified copy of said roll fur- 
nished to J. W. Wallace by the Cherokee authori- 
ties when he was in the Cherokee Nation in 1889 
making up his census roll of Cherokee freedmen 
living and in being March 3, 1883. 

This roll, a copy of which is herewith furnished 
you, contains the names of only 1,874 persons, while 
the decree of the court in this case, decided March 
18, 1895, fixes the number, in 1880, of Cherokee 
freedmen at 2,052. 



105 

In making' tlir invi'sti*::;ati()ii pri'scrihctl in .said 
decree you will confine yourselves to the identity of 
the followiuii; classes of persons onl> : 

1. All persons who had been liherated by the vol- 
untary act of theii* former owners or by law, who 
were residents in the Cherokee Nation at the time of 
the ti-eaty of July 19, 1866, or who i-cturncd within 
six months from the date of the pronud^ation of the 
treaty, viz, February 11, 18()7, and their descend- 
ants; that is to say, freedmen and the descendants 
of freedmen who did not return within six months 
are excluded from the benefits of the treaty and of 
the decree. 

2. All free colored persons w^ho were in the Chero- 
kee Nation at the commencement of the rebellion, 
and w^ere residents in the Cherokee Nation at the 
time of the treaty of July 19, 1866, or who returned 
within six months from the date of the promul^ration 
of the treaty, viz, February 11, 1867. 

It must be further shown that all the persons 
identified as of either of said classes, were alive and 
in being May 3, 1894, and were at that time residents 
of the Cherokee Nation; it being understood that 
the freedmen and their descendants and free colored 
persons above referred to include only such persons 
of said classes as have not forfeited or abjured their 
citizenship of said Cherokee Nation at the date of 
the entering of said decree (February 3, 1896). 

In determining the identity of the persons afore- 
said, a vote of a majority of the commission shall 
be sufficient to entitle the person to be enrolled on 
schedule as a beneficiary of the aforesaid fund. 

You are hereby authorized to employ a competent 
clerk, who shall be a stenographer, at a monthly 



106 

salary of $ , and such other temporary clerical 

force as you may find necessary to facilitate and 
hasten your work. You are also authorized to rent 
an office in which to transact your business, to em- 
ploy a competent person from time to time at a 

weekly salary of $ , to keep order during the 

time the commission is in session and taking testi- 
mony, and to attend to such other duties as may be 
found necessary by the commission in the prosecu- 
tion of the work. The above salaries to be fixed by 
the commission. 

It is expected that you will conclude your labors 
within four months from the time you qualify as 
aforesaid, but if before the expiration of that time 
you ascertain that a longer period is demanded and 
required to do justice to all alleged claimants you 
will so report the fact in ample time to the Secretary 
of the Interior, designating the additional length of 
time required in your estimation to complete the 
work, in order that the time may be extended if 
approved by him. 

You will, on the completion of your labors, submit 
a schedule of the names of the persons determined by 
you as being entitled to share in the distribution of 
the fund of $903,365 mentioned in the aforesaid 
decree, with a typewritten report of your daily pro- 
ceedings and of all evidence where claimant is not 
admitted at all or only admitted by a vote of the 
majority of said commission, and file stenographic 
notes of all testimony taken. 

These instructions, with any other duties required 
of you by the aforesaid decree, a copy of which is 
herewith furnished you, you are expected to carry 
out fully, faithfully, and impartiallj^, that justice may 
be meted out as contemplated by the Court of Claims. 



Your attention is callod to the lollowin.ii; paragraph 
in the dcn-ree limiting the amount of expenditures to 
$6,500: 

And it is further directed that the amount of 
$(),5()0, or so nnich thereof as may ))e neees- 
sary, is herel)y allowed for the eom{)ensation 
of the said commissioners and the necessary 
costs and expenses incidental to the ascertain- 
ment of the individual conij)lainants by them 
as hereinbefore provided. 
By direction of the Secretary of the Interior, your 
compensation will be $1,500 each for the whole work 
and actual and necessary traveling expenses. 

Under no circumstances will you be allowed to ex- 
pend more than said sum of $6,500 for your compen- 
sation and for necessary costs and expenses incidental 
to the ascertainment of the number of persons, etc., 
referred to in said decree. 
Very respectfully, 

D. M. Browning, 

Com7nissioner. 
Approved : 

Hoke Smith, 

Secretai'y. 



Department of the Interior, 

Washington, April 21, 1896. 
Commissioner of Indian Affairs. 

Sir: I have approved and returned herewith the 
draft of instructions prepared by your office and sub- 
mitted wath your letter of February 20, 1896, for the 
guidance of the commission provided in the decree 
of the Court of Claims in cause No. 17209 of Moses 
Whitmire, trustee for the freedmen of the Cherokee 
Nation, against the Cherokee Nation and the United 



108 

States to ascertain and determine who are the indi- 
vidual freedmen and free colored persons of the Chero- 
kee Nation now entitled to share in the distribution 
of the sum awarded by said decree of the Court of 
Claims, filed February 3, 1896. 

The papers accompanying your communication are 
herewith returned. 

Very respectfully, 

Hoke Smith, 

Secretary. 
(1236 Ind. Div., 1896. Three inclosures.) 



109 



APPIONDIX K. 

INSTIUCTIONS PHOI'OSHI) 15Y ATTOllNEV I'OK CIIKKoKKK 
FREEDMEN AND SUBMITTED TO THE COURT (FILED Al'K. 
14, 189G). AND ()RDEI{ OF <"OURT THEREON. 

To the honombk Court of Claims: 

The iiiKler8i«2;ned respoctfully represents that he has 
spent the last few weeks in the Cherokee Nation with 
a view of having the case of the freedmen prepared 
for presentation to the commission. That he finds in 
many instances the former slaves of the Cherokee 
Nation durino; the rehellion were taken from that 
country by their owners, the Cherokees, to the far 
Southern States and in some instances to old Mexico. 
That at the concl uion of the war some of these 
slaves who had enlisted in the Union Army were dis- 
banded at various points of the Union far away from 
the Cherokee country. That both of these classes of 
freedmen were left at these various points penniless 
and ignorant, Init with no intention of abandoning 
their residence in the Cherokee country. That as soon 
as possible they returned to the Cherokee country, 
but some of them not within the six months' limita- 
tion specified in the treaty. That these people have 
resided there coi^tinuously since and been as good 
citizens as that country has. That Secretary Noble, 
when the Wallace roll was taken, instructed Wallace 
to enumerate this class of people, and this was done. 
That in the judgment of the undersigned the number 
of such people is only a few hundred and that it is the 
belief of the Interior Department, as well as of the 
undersigned, that to exclude people of this class would 



110 

be contrary to the spirit of the treaty and would be a 
bone of contention in the Cherokee Nation. That 
justice to all parties would be best subserved by 
leaving it in the discretion of the commissioners in 
taking testimony under the decree of this court to 
allow such persons to be enrolled. 

The undersigned has been summoned here by the 
Secretary for a conference in reference to the instruc- 
tions to guide the commissioners. And that whilst 
he has seen the letter of Judge Nott in reference to 
this construction, but he feels that this was perhaps 
given by the court without its being aware of the 
fact above stated. He feels his duty to his clients 
demands that he should ask the court for its advice 
as to an instruction of this character, and he submits 
herewith the form of an instruction which he thinks 
the Secretary would cheerfully give if approved by 
the court. (Paper marked "Exhibit A.") 

The undersigned further states that he found in the 
Cherokee country a large number of lawyers proposing 
to represent the freedmen before this commission and 
making extravagant contracts with them. That he 
thereupon assumed to notify the freedmen that the 
decree in the case contain the following provision, 
" that each of said parties shall be entitled to be rep- 
resented before said commissioners, either at the 
taking of testimony in the Cherokee country or else- 
where." That he had that provision inserted in the 
decree so as to enable the trustee to employ counsel 
to represent the freedmen before the commission. 
That thereupon he agreed with the freedmen to pre- 
sent the construction of this provision to the court and 
to the Secretary, that he felt satisfied that they 
would decide that it was the duty of the trustee to 
employ an attorney to take full charge of the freed- 



1 1 1 

men's case before the coniniission. Tliut in his judg- 
ment this should l)e done, hut that (lie trustee will 
not do so unless he is advised that he can pay such 
attorney a reasonable compensation for his services 
out of the funds in this case. That the Cherokees 
have employed two of the ablest lawyers in the nation 
to represent them, and he would respectfully ask 
the advice of the court in this matter so the same may 
be suggested to the Secretary of the Interior. All of 
which is respectfully submitted. 

Robert H. Kern. 

exhibit a. 

In making the investigations prescribed in said 
decree, it shall confine itself to the identity of the 
following classes or persons only : 

1. All persons who had been held in bondage by 
any member of the Cherokee Nation, and who had 
been liberated by act of law or by voluntary act of 
their owners, and the descendants of such, as pro- 
vided in the terms of the treaty of July 16, 1866, and 
if it shall appear to said commission that any person 
or persons of the aforesaid class had been taken from 
the Cherokee Nation during the rebellion either by 
the owners thereof, or was absent therefrom during 
said time because of his or their belonging to either 
of the armies that were engaged in the late rebellion, 
and were unable to return to the Cherokee Nation 
within six months after the conclusion and ratifica- 
tion of the treaty refen-ed to in the decree in said 
cause, of date July 16, 1866, because of circumstances 
beyond their control, but returned as soon as practi- 
cable, then no such person shall be excluded by said 
commission from the roll to be prepared by it, but the 

14296—09 8 



112 

same shall be placed thereon, as well as the descend- 
ants of such. 

2. All free colored persons who were in the Indian 
Territory at the commencement of the rebellion and 
were residents thereof at the time of the treaty of 
July 16, 1866, or who returned thereto within six 
months after the conclusion and ratification of said 
treaty. 

3. All of the aforesaid classes who were reisdents of 
the Cherokee Nation on May 3, 1894. 

ORDER. 

The court is of the opinion that the act 2d March, 
1895 (28 Stat. L., p. 910, sec. 11), prescribes the 
manner in which payments per capita shall be made 
and that the matter of payment is exclusively within 
the jurisdiction of the Secretary of the Interior. 

The court, after further consideration, adheres to 
the opinion communicated to the Commissioner of 
Indian Affairs, February 18, 1896. 

The within motion for instructions is overruled. 
April 15, 1896. 



Bv the court: 



Wm. a. Richardson, 

Chief Justice. 

O 



.^ 






LIBRARY OF CONGRESS 



I 'I ill 1 1 III 



010 737 539 9 



^ 




